                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 10-1827


MARILYN MORGAN SESSION,

                Plaintiff - Appellant,

          v.

MONTGOMERY COUNTY SCHOOL BOARD,

                Defendant – Appellee,

          and

TIFFANY E. ANDERSON,

                Defendant.



Appeal from the United States District Court for the Western
District of Virginia, at Roanoke.  Samuel G. Wilson, District
Judge. (7:09-cv-00138-sgw-mfu)


Argued:   December 7, 2011                 Decided:   January 25, 2012


Before NIEMEYER, AGEE, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Stephen Z. Chertkof, HELLER, HURON, CHERTKOF, LERNER,
SIMON & SALZMAN, PLLC, Washington, D.C., for Appellant. Jeremy
E. Carroll, GLENN, FELDMANN, DARBY & GOODLATTE, Roanoke,
Virginia, for Appellee.    ON BRIEF: Jonathan M. Rogers, Floyd,
Virginia; Douglas B. Huron, HELLER, HURON, CHERTKOF, LERNER,
SIMON & SALZMAN, PLLC, Washington, D.C., for Appellant.
Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

     Marilyn M. Session appeals the district court’s grant of

summary judgment for the Montgomery County School Board (“School

Board”) in her Title VII action.             Session contends that the

School Board unlawfully retaliated against her because she filed

a grievance against the Superintendent, Dr. Tiffany Anderson,

for making two comments that, according to Session, constituted

racial   harassment.    Because   no   reasonable    person   could   have

believed that the two comments were so objectively offensive as

to alter the conditions of Session’s employment, we hold that

the district court properly granted summary judgment in favor of

the School Board and dismissed Session’s Title VII complaint.1



                                  I.

     Session has been employed by the Montgomery County Public

Schools since 1977.    In September 2004, Session was promoted to

Supervisor    of   Social   Studies    and     Library   Media.       Soon

thereafter, in March 2005, Anderson became the Superintendent of

the Montgomery County Public Schools.

     Session, an African-American, alleges that in June and July

of 2005, Anderson, also an African-American, made two racially

     1
       Anderson was previously a named defendant.   The district
court dismissed her from the suit on February 11, 2010, and that
order is not before us on appeal.




                                   3
derogatory      comments   that,    according    to    Session,      amounted     to

racial     harassment.       Regarding     the     first    alleged       incident,

Session claimed that she was at her school desk speaking with a

friend when Anderson walked in.            Anderson asked Session and her

friend, both of whom are African-American, about finding a local

hairdresser.        Anderson asked Session how she styled her hair,

and Session responded that she “wash[ed]/dr[ied] it.”                      J.A. 53.

Anderson then commented “oh, you have that good hair.”                     J.A. 53-

54.   Session complained that the comment meant that Session did

not “‘have hair like other black people’” and that it was a

“condescending remark.”        J.A. 54.

      The second alleged incident occurred the following month at

a staff meeting.       During the meeting, Anderson proposed a team-

building exercise for the next meeting.                    Session stated that

Anderson    asked    the   staff,   including      Session,    “to       bring   baby

pictures [of themselves] during the next month for a contest on

who could accurately guess the identities of the pictures.”                       Id.

According to Session, Anderson stated that they would need to

use “plant,” i.e. fake, pictures because “‘some of us have more

melanin in our skin than others.’”           Id.      Session contended that,

“[b]eing    a   fair-skinned    African-American        person,      I    knew   that

participating in that contest would make me the recipient of

comments/questions about my baby picture not ‘looking black.’”




                                       4
Id.    Session believed that this comment created an uncomfortable

environment.

       On September 9, 2005, Session lodged an official harassment

complaint about these two comments with the School Board.                              The

School Board considered Session’s complaint and determined that

it    was   unfounded.         Around       that   same    time,     the    School    Board

approved Anderson’s request                  to eliminate Session’s supervisor

position     and    create       a    new    position     in   its   place.         Session

applied for the new position, but the School Board ultimately

hired someone else.

       In Spring 2006, Session was reassigned from her supervisory

role to a teaching position and took a forced pay cut.                           In July

2006, Session received a negative performance evaluation, and in

August      2006,    she    was       assigned     to   an     alternative     education

program     for     troubled         students.      Session      alleges     that    these

actions were in retaliation for her internal complaint against

Anderson.

       Session      filed    a       discrimination       charge      with    the     Equal

Employment     Opportunity            Commission    (“EEOC”).         The    EEOC    found

reasonable cause to believe that the School Board had retaliated

against Session, and Session in turn filed this suit.                            On June

21, 2010, the district court granted the School Board’s motion

for summary judgment “because Anderson’s alleged comments did

not    violate      Title    VII,      and    because     Session     could    not    have


                                               5
reasonably believed that they did . . . .”               J.A. 81-82.     Session

appeals from this ruling.



                                       II.

       We “review[] a district court’s decision to grant summary

judgment   de    novo,    applying     the   same   legal   standards    as   the

district court.”          Pueschel v. Peters, 577 F.3d 558, 563 (4th

Cir. 2009).        Summary judgment is appropriate “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.

       “Under Title VII of the Civil Rights Act . . ., it is

unlawful ‘for an employer to discriminate against any of his

employees . . . because [the employee] has opposed any practice

made an unlawful employment practice by [Title VII], or because

[the   employee]    has     made   a   charge,      testified,    assisted,    or

participated in any manner in an investigation, proceeding, or

hearing under [Title VII].’”           Clark Cnty. Sch. Dist. v. Breeden,

532 U.S. 268, 269 (2001) (citation omitted).                     To make out a

prima facie case of retaliation, a plaintiff must show: (1) that

she engaged in a protected activity; (2) that the defendant took

a materially adverse action against her; and (3) that a causal

connection      existed    between     the   protected      activity    and   the




                                        6
materially        adverse    action.         E.E.O.C.       v.     Navy      Federal      Credit

Union, 424 F.3d 397, 405-06 (4th Cir. 2005).

       Protected activity can be either “opposition” activity or

“participation”        activity.           Id.    at    406.          Opposition      activity

includes         internal     complaints          about       alleged         discriminatory

activities—the        activity       at     issue      in   this      case.        Id.        Such

opposition activity is protected when the employee opposes an

“actual unlawful employment practice” or “an employment practice

that the employee reasonably believes is unlawful.”                                 Jordan v.

Alternative        Res.     Corp.,    458    F.3d      332,    338      (4th    Cir.      2006).

“Because        the   analysis       for     determining         whether       an     employee

reasonably believes a practice is unlawful is an objective one,

the issue may be resolved as a matter of law.”                             Id. at 339.         See

also    Breeden,      532    U.S.    at     271     (reinstating           district      court’s

entry      of    summary     judgment        where      plaintiff          could    not       have

reasonably believed that she was opposing an employment practice

that violated Title VII).

       Title VII “forbids only behavior so objectively offensive

as    to   alter      the    ‘conditions’         of    the      victim’s      employment.”

Oncale     v.     Sundowner    Offshore       Servs.,       Inc.,       523    U.S.      75,    81

(1998).         To evaluate whether that standard has been met, courts

look “‘at all the circumstances,’ including the ‘frequency of

the     discriminatory         conduct;          its    severity;          whether       it     is

physically        threatening        or    humiliating,          or    a    mere    offensive


                                              7
utterance;          and   whether        it    unreasonably         interferes          with     an

employee's         work   performance.’”              Breeden,      532     U.S.    at    270-71

(quoting Faragher v. City of Boca Raton, 524 U.S. 775, 787-88

(1998)).          Relatedly, a “‘recurring point in [our] opinions is

that simple teasing, offhand comments, and isolated incidents

(unless         extremely   serious)          will    not    amount    to    discriminatory

changes in the ‘terms and conditions of employment.’’”                                  Breeden,

532 U.S. at 271 (quoting Faragher, 524 U.S. at 788).

           In    Breeden,    the    Supreme          Court   held     that   no     reasonable

person could believe that a Title VII violation occurred when a

supervisor read a comment from a job applicant’s file stating “I

hear       making    love   to     you    is    like     making     love     to     the       Grand

Canyon,”         after    which    the    supervisor         stated     that      he    did     not

understand the comment, a male colleague stated that he would

explain later, and both men chuckled.                        Breeden, 532 U.S. at 269.

The Supreme Court made clear that the incident was “at worst an

‘isolated         inciden[t]’       that        cannot       remotely        be     considered

‘extremely          serious,’      as    our     cases       require.”            Id.    at     271

(citation omitted).2


       2
       Session dedicates a substantial portion of her brief to
arguing why Jordan does not apply and why it should be
overturned.    None of this furthers Session’s cause, because
Breeden, a Supreme Court case pre-dating Jordan, points us to
precisely the same result in this case.    Compare Jordan, 458
F.3d 332, with Breeden, 532 U.S. 268.




                                                8
       Similarly,      in   this     case,         Session’s       harassment        complaint

referred      only    to    the      two   previously-discussed                   comments     by

Anderson:     the     first       comment,         in    the    context      of     Anderson’s

seeking    recommendations           for   a       hairdresser,        that       Session    had

“‘that good hair’” (J.A. 53-54); and the second comment, about

the need to use plant pictures in the baby picture icebreaker

because     “‘some     of     us    have     more        melanin      in    our     skin     than

others.’”      J.A. 54.       Those two comments are the entire universe

of Session’s complaint.

       Looking objectively at these comments, the first appears to

this Court to be an innocuous comment as opposed to an insult.

The second comment seems to us to be a clear reference to the

fact   that    Anderson       herself,       with        a   darker    complexion,         would

stand out in the baby picture guessing game.                           We fail to see how

the second comment was directed at, not to mention in any way

derogatory about, Session.

       It may well be that Session found the comments subjectively

offensive.      Nevertheless, Anderson’s two comments are inadequate

as a matter of law for Session to have held an objectively

reasonable      belief        that     she         confronted          an        abusive     work

environment that violated Title VII:                            The comments were not

frequent,      severe,        physically            threatening,            or     objectively

humiliating;         and    the     comments            could    not       have     reasonably

interfered with Session’s work performance.                             The comments did


                                               9
not   alter   the   terms,   conditions,   or   privileges   of   Session’s

employment.     See Breeden, 532 U.S. at 270-71.             We therefore

affirm the district court’s grant of summary judgment for the

School Board.



                                   III.

      In sum, because no reasonable person could have believed

that the two comments at issue in this case violated Title VII,

we affirm summary judgment in favor of the School Board.

                                                                   AFFIRMED




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