                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 07-2145


MELANIE PITROLO,

                Plaintiff - Appellant,

           v.

COUNTY OF BUNCOMBE, NC; BRITT LOVIN; DEAN KAHL; LOYD KIRK;
VONNA CLONINGER; WESTERN NORTH CAROLINA REGIONAL AIR
QUALITY AGENCY BOARD OF DIRECTORS; WESTERN NORTH CAROLINA
REGIONAL AIR QUALITY AGENCY,

                Defendants – Appellees.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville.  Lacy H. Thornburg,
District Judge. (1:06-cv-00199)


Argued:   January 29, 2009                 Decided:   March 11, 2009


Before WILKINSON, TRAXLER, and SHEDD, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished
opinion.    Judge Shedd wrote the opinion, in which Judge
Wilkinson and Judge Traxler joined.


ARGUED: Michael Geoffrey Wimer, WIMER & JOBE, Asheville, North
Carolina, for Appellant.   Thomas J. Doughton, DOUGHTON & HART,
P.L.L.C., Winston-Salem, North Carolina, for Appellees.      ON
BRIEF: Amy L. Bossio, DOUGHTON & HART, P.L.L.C., Winston-Salem,
North Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.




                                2
SHEDD, Circuit Judge:

     Melanie Pitrolo filed this action under Title VII claiming

that the County of Buncombe, the Western North Carolina Regional

Air Quality Agency, the Agency Board of Directors, Britt Lovin,

Dean Kahl, Loyd Kirk, and Vonna Cloninger failed to promote her

because of her gender and retaliated against her for engaging in

protected     opposition    activity.        The   district      court    granted

summary judgment in favor of Defendants on both claims.                   Because

the district court erroneously excluded testimony favorable to

Pitrolo,    we   vacate    and   remand     on   the   gender    discrimination

claim.     We affirm on the retaliation claim.



                                        I

     The    Western    North     Carolina    Regional    Air    Quality    Agency

(“the Agency”) is governed by a five-member Board of Directors

and is responsible for air quality issues in Buncombe County. 1

In 2005, Agency Director Bob Camby decided to retire, and the

Board formed an ad hoc committee to recommend a candidate for

Interim    Director.      The    committee   consisted    of    Camby     and   two

Board members, Vonna Cloninger and Dean Kahl.                  Three candidates

applied for the position: Pitrolo, Enforcement Supervisor David

     1
       For purposes of summary judgment, we view the facts in the
light most favorable to the non-moving party. Scott v. Harris,
550 U.S. 372 (2007).



                                        3
Brigman, and Monitoring Supervisor Kevin Lance.                             Brigman, who

was eventually promoted, had worked for the Agency since 1990

and been a supervisor since 1996, while Pitrolo had served as

the Engineering Supervisor for the Agency since 2000.

       Once the search began, Buncombe County Manager Wanda Greene

contacted      Cloninger        and    informed       her     that    multiple       Agency

employees felt Pitrolo did not have the communication or people

skills       necessary     to     be    Interim       Director.             Greene      also

independently        recommended       that    Pitrolo        not     be     promoted    to

Interim Director.          During the same time period, Camby reported

to Pitrolo that there was opposition to hiring her as Interim

Director because of her gender and young age.                         Pitrolo promptly

informed       her     father    and    others       of     Camby’s        statement;    in

response,      her     father     contacted         the     Council    of     Independent

Business         Organizations          (“CIBO”)            and       complained         of

discrimination. 2          Ultimately,        the    Board     learned       about   these

allegations.

       The Board held an open meeting on June 7, 2005.                          Cloninger

initially reported that the ad hoc committee was not ready to

recommend a candidate to become Interim Director.                              The Board

then       discussed    the     committee’s         search     (including       Pitrolo’s

       2
       Pitrolo’s father erroneously thought that CIBO controlled
the Agency. While untrue, three Board members were connected to
CIBO in some capacity.



                                           4
complaint to her father about discrimination) during the closed

portion       of     the    meeting.           Cloninger        reported       that    she    had

received       negative          comments      about      Pitrolo      from     the    Buncombe

County office and that Pitrolo’s father had made “threatening

phone calls” to other community leaders. 3                       The Board talked about

each       candidate’s       application,        and      Cloninger     pointed        out   that

Pitrolo       was    the     least      experienced        of    the    three     candidates.

Despite Cloninger’s earlier statement that the committee needed

more time to make a recommendation, the Board decided to make a

decision       that        day    so    that    Camby      could       train    the     Interim

Director.           Before the Board voted, Board Chairman Bill Church

reminded the members that they could not “hire on the basis of,

or not hire on the basis of race, creed, color[.]” DVD: Board

Meeting Executive Session (June 7, 2005) at 4:30pm.                                   Cloninger

responded:         “We’ve        been   accused      of    discrimination,            and    as   a

woman, that’s sort of stupid to say I’m discriminating against

women, so, but I totally, totally agree with what Bill’s saying




       3
       A DVD of the June Board meeting’s closed session was
supplied with Pitrolo’s opposition to summary judgment.    Among
other things, the DVD shows Cloninger saying, “I think that’s
what’s happened here with her family has made some threatening
phone calls to other community leaders, and I don’t like being
pushed by threat to hire someone . . . she’s very well qualified
. . . but the maturity level is not there at all, at this point
and within the last week.” DVD: Board Meeting Executive Session
(June 7, 2005) at 4:15pm.



                                                 5
. . [.]” Id. at 4:31pm.              Although Camby and Church recommended

Pitrolo, the Board ultimately hired Brigman.

     Pitrolo       brought     suit        in       North    Carolina         state      court,

alleging,     among       other      things,          gender        discrimination         and

retaliation.        Defendants removed the case and moved for summary

judgment.         The district court granted Defendants’ motion for

summary judgment and dismissed Pitrolo’s claims.                                 Pitrolo now

appeals     the     grant    of   summary           judgment        as   to      her     gender

discrimination and retaliation claims.



                                            II

                                            A.

     We   review     the     grant    of    summary         judgment     de      novo.     JKC

Holding Co. v. Washington Sports Ventures, Inc., 264 F.3d 459,

465 (4th Cir. 2001).           Summary judgment is appropriate when the

admissible     evidence       demonstrates            that     no    genuine       issue    of

material fact exists and that the moving party is entitled to

judgment as a matter of law.               Fed. R. Civ. Proc. 56(c); see also

Celotex   Corp.      v.     Catrett,       477      U.S.     317,    322      (1986).       In

reviewing    the     evidence,       the    court       must    draw       all    reasonable

inferences in favor of the nonmoving party and may not make

credibility determinations or weigh the evidence.                                Thompson v.

Aluminum Co. of Am., 276 F.3d 651, 656 (4th Cir. 2002).



                                                6
                                                  B.

       We    first       turn    to    Pitrolo’s         gender    discrimination         claim.

Pitrolo may defeat summary judgment by either of two avenues of

proof: (a) through direct evidence that gender motivated the

decision not to hire her or (b) through the burden shifting

scheme established by McDonnell Douglas Corp. v. Green, 411 U.S.

792 (1973).          Hill v. Lockheed Martin Logistics Mgmt., Inc., 354

F.3d 277, 284-85 (4th Cir. 2004)(en banc), cert. dismissed, 543

U.S. 1132 (2005).              Under the former, Pitrolo must only show that

her gender was one “motivating factor” in the decision not to

hire her. Hill, 354 F.3d at 284.

       Pitrolo contends that Camby’s statement that opposition to

her    was    based       on    her    gender      constitutes         direct     evidence     of

gender       discrimination.                The    district        court    concluded        that

Camby’s statement is inadmissible hearsay, J.A. 516, but we hold

that    this    finding         is     erroneous.            Federal     Rule     of    Evidence

801(d)(2) defines as non-hearsay a statement “offered against a

party”       that    is     “the      party’s          own   statement,      in     either    an

individual or a representative capacity,” or “a statement by the

party’s agent or servant concerning a matter within the scope of

the    agency       or    employment.”            Camby      was   the     Agency      Director,

Pitrolo’s      supervisor,            and   a     member     of    the   search     committee;

hence, he was an “agent” of the Agency within the meaning of



                                                   7
Rule 801(d)(2). 4         Moreover, his statement regarding Pitrolo’s

application to become Interim Director was clearly within the

scope of his employment as a member of the search committee

charged with evaluating Pitrolo’s application.                    We find that

Camby’s    statement      is   admissible      under    Rule   801(d)(2)    as    a

“party-opponent          admission.”            Therefore,     his      statement

constitutes direct evidence of gender discrimination and, given

the facts in this record, it is sufficient to defeat summary

judgment. 5    We therefore vacate summary judgment as to the gender

discrimination claim and remand for further proceedings.

                                        C.

     The      district     court   also       granted   summary      judgment    on

Pitrolo’s     retaliation      claim.         Section   2000e-3(a)      makes    it

unlawful for an employer to discriminate against any employee

because that employee “opposed any practice made an unlawful

employment practice by this subchapter.”                  42 U.S.C. § 2000e-

3(a).     As with gender discrimination, a plaintiff can use either

direct evidence or the McDonnell Douglas burden-shifting scheme

     4
       Camby’s role as Agency Director and committee member, as
well as his direct contact with the Board, distinguish his
statement to Pitrolo from “unattributed rumors” found to be
hearsay in cases such as Greensboro Prof’l Fire Fighters Ass’n
v. City of Greensboro, 64 F.3d 962, 967 (4th Cir. 1995).
     5
       Because Pitrolo survives summary judgment under the mixed
motive framework, we need not address the McDonnell-Douglas
pretext analysis.



                                          8
to prove a claim of retaliation.                   Price v. Thompson, 380 F.3d

209,   212    (4th   Cir.      2004).        However,     either   scheme       of   proof

requires Pitrolo to show that she engaged in protected activity

within the meaning of § 2000e-3(a).                 Peters v. Jenney, 327 F.3d

307, 320-321 (4th Cir. 2003).

       For   purposes     of    a   retaliation         claim,   protected      activity

falls into one of two categories: participation or opposition.

Laughlin v. Metro Washington Airports Auth., 149 F.3d 253, 259

(4th Cir. 1998).          Pitrolo concedes that at the time Defendants

failed to promote her, she was not participating in an ongoing

investigation or proceeding; thus, if Pitrolo did not engage in

protected opposition activity, her retaliation claim fails.

       To    determine    whether       an    employee      engaged   in     protected

opposition activity, a court balances “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.       Opposition activity encompasses

“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.    We

have typically found these informal complaints to be protected

when they are made by the employee to the employer.                             See e.g.

Bryant v. Aiken Regional Medical Centers Inc., 333 F.3d 536,

                                             9
543-544 (4th Cir. 2003); Armstrong v. Index Journal Co., 647

F.2d 441, 448-49 (4th Cir. 1981). 6

       In     light   of   this    precedent,   we   find     that     Pitrolo’s

statements to her father do not qualify as protected activity

under § 2000e-3(a). 7        There is no evidence that Pitrolo intended

for her father to pass along her complaints to Defendants.                  J.A.

238.       Pitrolo did not communicate her belief to her employer and

was    not      attempting    to    bring   attention       to   the    alleged

discriminatory conduct.            Instead, Pitrolo told her father of

Camby’s statements because she was “close to [her] father” and

“it was something that was very important that was going on in

[her] life at the time.”           J.A. 238.    As noted by the district



       6
        We do not read Crawford v. Metropolitan Government of
Nashville and Davidson County, Tenn., 129 S.Ct. 846 (2009) to
affect our analysis.    In Crawford, the Supreme Court held that
the opposition clause extends to employees who involuntarily
testify   in  an   internal   investigation  of   alleged sexual
harassment.   The Court pointed to an EEOC guideline explaining
that “‘[w]hen an employee communicates to her employer a belief
that her employer has engaged in . . . a form of employment
discrimination,     that    communication’    virtually   always
‘constitutes the employee’s opposition to the activity.’”
Crawford, 129 S.Ct. at 851 (citing 2 EEOC Compliance Manual
§§ 8-II-B(1), (2), p. 614:0003 (Mar.2003))(emphasis added).   As
Justice Alito noted, Crawford does not extend to cases where
employees do not communicate their views to their employers
through purposive conduct. Crawford, 129 S.Ct. at 855 (Alito,
J., concurring).
       7
       Although Pitrolo spoke to several people about the alleged
gender discrimination, she does not contend that the Board
discovered any of her other statements.



                                       10
court, it would not be reasonable to “characterize a private

complaint to a close family member as an ‘informal grievance

procedure’     under     Laughlin.”         J.A.     527.      Since     Pitrolo’s

statement     to   her    father     was     not   protected    activity,      her

retaliation claim fails.



                                       III

     For the foregoing reasons, we vacate and remand Pitrolo’s

gender   discrimination      claim    and     affirm    the   district     court’s

grant    of   summary    judgment     in     favor     of   Defendants    on   her

retaliation claim.

                                                              AFFIRMED IN PART,
                                                               VACATED IN PART,
                                                                   AND REMANDED




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