                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 14-2092


KIMBERLY J. MCKINNISH,

                Plaintiff - Appellant,

           v.

MEGAN J. BRENNAN, Postmaster General, U.S. Postal Service, 1

                Defendant - Appellee.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Max O. Cogburn, Jr.,
District Judge. (1:13-cv-00087-MOC-DLH)


Argued:   October 7, 2015                   Decided:    November 6, 2015


Before TRAXLER,   Chief     Judge,   and   KING   and   THACKER,   Circuit
Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Christopher Douglas Vaughn, THE VAUGHN LAW FIRM, LLC,
Decatur, Georgia, for Appellant.  Paul Bradford Taylor, OFFICE
OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for
Appellee.  ON BRIEF: Anne M. Tompkins, United States Attorney,



     1 Megan J. Brennan is substituted as Defendant-Appellee for
her predecessor, Patrick Donahoe, as Postmaster General of the
United States. See Fed. R. App. P. 43(c)(2).
OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

            Kimberly      McKinnish      (“Appellant”)      appeals       from    the

district    court’s      entry   of    summary   judgment    in    favor    of    the

United States Postmaster General (“Appellee”).                    Appellant filed

a Title VII lawsuit against Appellee based on alleged sexual

harassment by David Duncan, an individual she refers to as her

supervisor.    The district court, however, ruled that Duncan was

not her supervisor as a matter of law, based on the Supreme

Court’s recent decision in Vance v. Ball State University, 133

S. Ct. 2434 (2013).            Therefore, Appellant was required to show

that Appellee was negligent, which the district court concluded

she did not do.

            Even   assuming          Duncan    was   Appellant’s      supervisor,

Appellant   has    not    produced      sufficient   evidence      that    Duncan’s

actions culminated in a tangible employment action, and Appellee

is entitled to the benefit of the affirmative defense set forth

in Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and

Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998).                       We

affirm the district court on this ground.

                                         I.

                                         A.

            Appellant worked for the United States Postal Service

in its Asheville, North Carolina office.               She was a Transitional

Employee    (“TE”),      and   her    duties   included   delivering       mail    on

                                          3
various routes when a permanent employee “was on vacation or

sick leave, or where a route did not have an assigned permanent

carrier.”     J.A. 34. 2     All TEs were expected to deliver mail on

any available routes, including walking and riding routes.

             While in the Asheville office, Appellant worked with

David Duncan.       Appellant refers to Duncan as her “supervisor,”

but his legal status as to her is a matter of dispute.                        He was

classified    by   the   Postal      Service    as   an    EAS-17      Supervisor    of

Customer      Service      and       was     responsible         for    “supervising

subordinate     employees       in    the    performance      of    their   assigned

duties.”     J.A. 170.      Specifically, his job description included

“evaluat[ing] the daily workload”; “mak[ing] carrier and route

assignments”;      “mak[ing]     temporary      changes     in     routes   and   time

schedules”;     “authoriz[ing]         overtime      work”;        “[e]stablish[ing]

work schedules”; and “allocat[ing] work hours to meet service

requirements.”      Id. at 114.

             Beginning     in        January     2010      and      continuing      for

approximately      ten     months,         Duncan    and    Appellant       exchanged

numerous text messages and videos.                   The exchanges were often

sexually explicit in nature.                 During this time frame, Duncan



     2 Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.




                                            4
also       made    requests   that      seemed    based   on   his   authority   over

Appellant, as well as suggestions that he would reward Appellant

for her responses.            See, e.g., J.A. 185 (“Even if I did have

them lined up, you would be in the front of the line!!!!!”); id.

at 190-91 (“Do you know rt 115?” 3                  “I might can get you on it

tomorrow.”); id. at 192 (“Think you might can take a picture for

your ‘Master’ tonight?”).

                  Appellant   claims     that,    generally,     she    responded   to

Duncan’s requests by sending photos she found on the Internet or

text messages copying words from pornographic magazines.                            The

record also includes some of her messages from early November

2010, including the following texts: “WOW!! You definitely know

how to put a smile on my face”; “Good morning :)”; “LOL! You are

too funny :)”; and “OMG . . . I just saw it, sorry! I just adore

you :).”          J.A. 59-60, 95.

                  Appellant did not report this conduct to her employer;

rather, her husband found the messages on November 16, 2010, and

reported them to the Postal Service.                  Appellant claims that she

only participated in the exchanges “due to a change in my work

status when I did not participate and for fear that I would be

retaliated          against   if    I   did   not.”       J.A.   180.      Appellant



       3
       Route 115 was a desirable route because of the ease of
access to the boxes and relatively flat terrain.



                                              5
explained     that     she    received    “favorable            treatment”      when     she

complied with Duncan’s requests, id., and when she did not honor

Duncan’s requests, Duncan brought her in to work after the other

workers and gave her “bad” routes, id. at 182, 73.                          Nonetheless,

Appellant testified that overall, in 2010 her “hours of work

remained fairly constant” and she “made more money [that year]

than [she] ever made.”          Id. at 74.

            At no point did Appellant tell anyone at the Postal

Service about the messages or otherwise avail herself of the

protections      and   procedures       laid    out    in       the   Postal    Service’s

sexual     harassment        policy.          She     claimed         she   was    afraid

“management[] would look at me like I was a troublemaker and I

would lose my job.”          J.A. 79.

                                          B.

            Appellant filed a complaint with the Equal Employment

Opportunity Commission (“EEOC”) alleging that she was sexually

harassed    by   Duncan.       The     EEOC    issued       a    decision      finding    no

actionable claim, and the Postal Service reviewed and adopted

that decision, concluding, “[Y]ou have not shown that you were

the victim of illegal discrimination.”                 J.A. 12.

            On March 28, 2013, Appellant filed an action in the

Western District of North Carolina against Appellee, alleging

one count of sexual harassment.                     On April 28, 2014, Appellee

filed a motion for summary judgment, which the district court

                                          6
granted on August 15, 2014.                   See McKinnish v. Donahoe, 40 F.

Supp. 3d 689 (W.D.N.C. 2014).                 The district court concluded that

Duncan    was    a    coworker,        not    a       supervisor,     under       the   Supreme

Court’s recent decision in Vance v. Ball State University, 133

S. Ct. 2434 (2013).               It then decided Appellant presented no

evidence that the Postal Service’s investigation was inadequate;

therefore, Appellee was not negligent in controlling Appellant’s

working conditions.            See McKinnish, 40 F. Supp. 3d at 697.

                                              II.

            We may affirm the district court’s decision “on any

grounds apparent from the record.”                       United States v. Price, 777

F.3d     700,    707     (4th     Cir.       2015)       (internal        quotation       marks

omitted).        We     review    the       district        court’s      grant     of   summary

judgment de novo, “drawing reasonable inferences in the light

most favorable to the non-moving party.”                           Butler v. Drive Auto.

Indus. of Am., Inc., 793 F.3d 404, 407 (4th Cir. 2015) (internal

quotation       marks    omitted).           This       court      “shall   grant       summary

judgment if the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a

matter of law.”          Fed. R. Civ. P. 56(a).                   We have held, “A mere

scintilla of proof . . . will not suffice to prevent summary

judgment; the question is ‘not whether there is literally no

evidence,       but   whether     there      is       any   upon    which     a    jury   could

properly    proceed       to    find    a    verdict        for    the   party’     resisting

                                                  7
summary judgment.”          Peters v. Jenney, 327 F.3d 307, 314 (4th

Cir. 2003) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 251 (1986)).

                                       III.

            The    parties   dispute     whether    Duncan    was    Appellant’s

supervisor as a matter of law pursuant to Vance v. Ball State

University,    133   S.   Ct.   2434    (2013).      Even    assuming     he   was,

however, we conclude that Appellant has not marshaled sufficient

evidence to demonstrate that Duncan’s conduct culminated in a

tangible employment action, and Appellee has successfully raised

the affirmative defense set forth in Faragher v. City of Boca

Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v.

Ellerth, 524 U.S. 742 (1998) (the “Faragher-Ellerth defense”).

             Title    VII     is     violated     “when     the    workplace     is

permeated     with    discriminatory          intimidation,       ridicule,    and

insult, that is sufficiently severe or pervasive to alter the

conditions    of   the    victim’s     employment    and    create   an   abusive

working environment . . . .”                 Nat’l R.R. Passenger Corp. v.

Morgan, 536 U.S. 101, 116 (2002) (internal quotation marks and

alteration omitted).         The district court construed Appellant’s

complaint to contain two causes of action under Title VII: a

hostile work environment claim and a quid pro quo harassment

claim.   For both causes of action, there must be some basis for

imputing liability to the employer.                 See Freeman v. Dal-Tile

                                         8
Corp., 750 F.3d 413, 420 (4th Cir. 2014); Okoli v. City Of

Baltimore, 648 F.3d 216, 222 (4th Cir. 2011).

           Vance     explains    that    if   the   alleged   harasser   is   a

supervisor,

           [and] the supervisor’s harassment culminates
           in   a   tangible   employment   action,    the
           employer is strictly liable.        But if no
           tangible employment action is taken, the
           employer     may     escape    liability     by
           establishing, as an affirmative defense,
           that (1) the employer exercised reasonable
           care to prevent and correct any harassing
           behavior   and    (2)    that  the    plaintiff
           unreasonably failed to take advantage of the
           preventive or corrective opportunities that
           the employer provided.

133 S. Ct. at 2439 (citing Faragher, 524 U.S. at 807; Ellerth,

524 U.S. at 765); see also Boyer-Liberto v. Fontainebleau Corp.,

786 F.3d 264, 278 (4th Cir. 2015) (en banc).                   Therefore, we

first turn to whether Duncan’s alleged harassment culminated in

a tangible employment action.

                                        A.

             A    “tangible     employment    action”   is    “a   significant

change in employment status, such as hiring, firing, failing to

promote,         reassignment       with       significantly         different

responsibilities, or a decision causing a significant change in

benefits.”       Vance, 133 S. Ct. at 2442 (quoting Ellerth, 524 U.S.

at 761).     There is no record evidence demonstrating that Duncan

had the authority to hire, fire, promote, or reassign Appellant


                                        9
to    a    position     with     significantly        different             responsibilities.

Therefore, we look to whether Duncan made a “significant change

in [Appellant’s] benefits.”                This court has quoted with favor

the       Eleventh    Circuit’s     statement         that       “[a]       reduction     in   an

employee’s hours, which reduces the employee’s take-home pay,

qualifies       as    a   tangible      employment           action.”                Dulaney   v.

Packaging Corp. of Am., 673 F.3d 323, 331 n.7 (4th Cir. 2012)

(quoting Cotton v. Cracker Barrel Old Country Store, Inc., 434

F.3d 1227, 1231 (11th Cir. 2006)).

               On this point, Appellant presents an attachment to her

EEOC complaint, wherein she stated, “During the course of []

Duncan’s      repeated       solicitations,       .    .     .   he     .    .   .    reduce[d],

alter[ed], and change[d] my working hours . . . .”                                    J.A. 167.

She   also     stated     that    Duncan    “started         [b]ringing          [her]    in   at

9:30-10:00 A.M. and the other TE’s were [b]eginning work at 7:30

A.M.”       Id. at 182.

               Appellant’s fellow carriers also submitted affidavits

in    support    of    her     claim.      An    affidavit         from       fellow     carrier

Kimberly Taylor stated, “[Duncan] would bring her in late at 10

and the rest of the TE’s would be starting at 7:30.”                                   J.A. 183.

Another, from Cassandra Pee, stated, “I saw that she was coming

in later than the other TE.                I also notices [sic] she was not

working as much as the other TE’s.”                        Id. at 184.               Taylor also

declared,

                                            10
            [Appellant] would always get the worst
            routes and when she would question [her]
            supervisor she would be told that[’]s how it
            is.   The reason I know this is we (other
            carriers) would question why [Appellant]
            would get dumped on all the time.     I have
            worked for the Post Office for 15+ years and
            I have never seen someone treated as poorly
            as she was treated.

Id. at 183.

            Appellant also admitted, however, that TEs “kind of

fill in where they need a carrier on a transitional basis,” and

she did not always “have the same route every day,” but her

routes would “change by the day.”           J.A. 71.     Indeed, Duncan

stated that all TEs were sometimes scheduled to work five days,

and sometimes six days, and if a TE “was going to work six days

in a week, they would be scheduled to come in later in the day

on some days that week to keep their basic weekly hours around

forty.”     Id. at 228.     Appellant has presented nothing to dispute

this testimony.        Therefore, the fact that Appellant was coming

in later on certain days, or that an employee observed that she

was “not working as much,” does not necessarily mean that her

hours were reduced.         In fact, Appellant herself admitted that

her “hours [] remained fairly constant.”         Id. at 74.    Moreover,

the record includes timesheets from each of the 16 weeks that

Appellant     worked    a   six-day   workweek   in   2010,   and   these

timesheets show that during these pay periods, she was receiving



                                      11
anywhere     from     3.5%     to     22.9%    overtime,         and    she    never      dropped

below a 40-hour workweek.

               Appellant        has     presented          no     means        to     delineate

timesheets       during        periods        when       she    succumbed       to       Duncan’s

requests to periods when she did not.                           Appellant has presented

no gauge of how her hours converted to pay during the time she

was texting with Duncan, and how that pay may have decreased or

increased.       To the extent the case law dictates that a tangible

employment action can be a positive change in benefits (an issue

we do not decide today), we have nothing, besides Appellant’s

bare   assertions,         demonstrating            that   her    hours       were    increased

after responding to Duncan’s requests.                          See Thompson v. Potomac

Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002) (holding

“[c]onclusory         or   speculative         allegations         do    not    suffice”          to

demonstrate a genuine issue of material fact).

               Appellant       has    failed        to   present       more    than      a   “mere

scintilla       of    proof”         that     Duncan’s         conduct    resulted           in    a

“significant” change in her benefits, and we conclude that there

is no evidence “upon which a jury could properly proceed to find

a verdict” in her favor on this issue.                            Peters v. Jenney, 327

F.3d    307,    314    (4th     Cir.        2003)    (quoting      Anderson         v.    Liberty

Lobby, Inc., 477 U.S. 242, 251 (1986)).                            Therefore, Appellant

has    not   created       a   genuine       dispute       of    fact    on    the       issue    of



                                               12
whether    Duncan’s     actions      culminated           in    a    tangible      employment

action.

                                               B.

            We     have      explained,             “[W]hen      the       harasser       is     a

supervisor,      the    employer         is    presumptively           liable      under       the

doctrine    of    respondeat       superior,          unless        the    Faragher–Ellerth

defense    applies.”         Dulaney,         673     F.3d      323,      330    n.7.      Thus,

Appellee     can       escape       liability             by     establishing,          by       a

preponderance of the evidence: (1) it exercised reasonable care

to prevent and correct any harassing behavior; and (2) Appellant

unreasonably      failed     to    take        advantage        of     the      preventive      or

corrective       opportunities       that          the    employer         provided.           See

Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 807.

                                               1.

            We first address whether there is any dispute that the

employer     exercised       reasonable            care    to       prevent      and    correct

Duncan’s harassing behavior.

            We have held that “dissemination of an effective anti-

harassment policy provides compelling proof that an employer has

exercised     reasonable          care        to     prevent        and      correct    sexual

harassment.”       Matvia v. Bald Head Island Mgmt., Inc., 259 F.3d

261, 268 (4th Cir. 2001) (internal quotation marks omitted).

Here,   Appellee       had   a     clear       and       comprehensive          policy.         It

explained, first, to “[t]ell the [h]arasser to [s]top!”                                      J.A.

                                               13
139.         It   also      gave   supervisors      direction   to    “[c]onduct      a

thorough inquiry” and “[t]ake prompt action to put an end to the

harassment.”         Id. at 141.        And most importantly, it explained

that       employees     who    are   being      harassed   should    report    to    a

supervisor,          manager,      Human      Resources     personnel,     or        the

inspector; or “if [the employee is] uncomfortable,” he or she

could “ask a union representative or coworker” to help report

the conduct.         Id. at 140. 4      Further, the Postal Service clearly

took swift action to correct the harassment.                    After Appellant’s

husband made his report, Duncan was terminated, and there was no

further harassment.

                                            2.

               Next, we look to whether Appellant unreasonably failed

to take advantage of the preventive or corrective opportunities

that the Postal Service provided.                   Appellant contends that she

did    not    want     to    report   the   harassment      because   it   made      her

uncomfortable and she feared negative repercussions at her job.

See, e.g., J.A. 58 (“I didn’t want to . . . ruffle any feathers,



       4
       Appellant claims the policy was not effective and calls
the investigation into her case a “sham,” but she produces no
evidence to support this claim. Appellant’s Br. 7. Rather, the
evidence shows that management responded rapidly to complaints
from another employee regarding Duncan’s alleged harassment, and
in Appellant’s case, Investigator Charles Fiske conducted a
thorough yet swift investigation, culminating in Duncan’s
termination.



                                            14
get anybody mad at me or anything.”); id. at 147 (“I don’t like

confrontation especially with my supervisor who controls my work

life.”).

            However, “an employer cannot be expected to correct

harassment    unless     the   employee      makes     a    concerted          effort    to

inform the employer that a problem exists.”                      Barrett v. Applied

Radiant     Energy    Corp.,   240   F.3d       262,       268    (4th       Cir.     2001)

(internal    quotation    marks   omitted).          “Little       can    be     done   to

correct    th[e]     objectionable   behavior        unless      the     victim       first

blows the whistle on it.             An employee’s subjective fears of

confrontation,        unpleasantness      or     retaliation           thus      do     not

alleviate the employee’s duty . . . to alert the employer to the

allegedly hostile environment.”                Id. (alteration and internal

quotation marks omitted).         Based on this precedent, Appellant’s

reasons for not reporting the alleged harassment are simply not

sufficient.

            For these reasons, Appellee has satisfied the elements

of   the    Faragher-Ellerth      affirmative          defense,        and     Appellant

cannot defeat the motion for summary judgment.

                                       IV.

            For    the   foregoing     reasons,      we     affirm       the    district

court.

                                                                                AFFIRMED



                                       15
