UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PATRICIA B. BURNS,
Plaintiff-Appellant,

v.

UNINET, INCORPORATED;
SOUTHEASTERN COMPUTER
                                                               No. 99-1264
CONSULTANTS, INCORPORATED,
Defendants-Appellees,

and

JOHN E. BJORN,
Defendant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge.
(CA-98-382)

Argued: January 24, 2000

Decided: April 5, 2000

Before NIEMEYER, Circuit Judge,
Deborah K. CHASANOW, United States District Judge
for the District of Maryland, sitting by designation,
and Andre M. DAVIS, United States District Judge
for the District of Maryland, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Larry A. Pochucha, COATES & DAVENPORT, Rich-
mond, Virginia, for Appellant. Stephen Michael Silvestri, MILES &
STOCKBRIDGE, P.C., Baltimore, Maryland, for Appellees. ON
BRIEF: David J. Ervin, MILES & STOCKBRIDGE, P.C., McLean,
Virginia, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Appellant, Patricia B. Burns, appeals from a judgment of dismissal
entered at the close of the plaintiff's case in an employment discrimi-
nation action tried to the court without a jury. We affirm.

I

Burns filed a complaint asserting claims under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.; she alleged sex-
ual harassment employment discrimination, disparate treatment
employment discrimination on the basis of sex, and retaliation. She
did not request a jury trial. Named as defendants were UniNet, Inc.,
its president John E. Bjorn, and an affiliated entity, Southeastern
Computer Consultants, Inc.

At the conclusion of discovery, defendants moved for summary
judgment. Meanwhile, counsel for Burns, having realized that a jury
trial had not been requested, filed a motion for jury trial pursuant to
Fed. R. Civ. P. 39(b).1 After a hearing on the motions, the district
_________________________________________________________________
1 Rule 39(b) provides: "Issues not demanded for trial by jury as pro-
vided in Rule 38 shall be tried by the court; but, notwithstanding the fail-
ure of a party to demand a jury in an action in which such a demand
might have been made of right, the court in its discretion upon motion
may order a trial by a jury of any or all issues." Fed.R.Civ.P. 39(b).

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court granted the motion for summary judgment, in part, dismissing
all claims asserted against the individual defendant, Bjorn, as well as
the disparate treatment claim. Burns does not challenge these rulings
on appeal. The district court denied the motion for summary judgment
as to the sexual harassment and retaliation claims. The district court
also denied the motion for jury trial.

The case proceeded to trial before the court without a jury. Burns
called six witnesses and testified on her own behalf. She also intro-
duced numerous exhibits. At the close of the plaintiff's case, defen-
dants moved for judgment pursuant to Fed. R. Civ. P. 52(a)2 and (c).3
The district court granted the motion. Subsequently, the district court
set out its findings of fact and conclusions of law in a written memo-
randum. This appeal followed.

II

Appellate review of a judgment rendered in a non-jury trial is cir-
cumscribed by the highly deferential "clearly erroneous" standard. See
Anderson v. City of Bessemer, 470 U.S. 564, 574 (1985); Carter v.
Ball, 33 F.3d 450, 457 (4th Cir. 1994) (affirming district court's dis-
missal of employment discrimination case at the close of plaintiff's
case). A trial court's findings of fact will only be disturbed if "`the
reviewing court on the entire evidence is left with the definite and
_________________________________________________________________
2 Rule 52(a) provides as follows in pertinent part: "In all actions tried
upon the facts without a jury or with an advisory jury, the court shall find
the facts specially and state separately its conclusions of law thereon, and
judgment shall be entered pursuant to Rule 58 . . . . Findings of fact,
whether based on oral or documentary evidence, shall not be set aside
unless clearly erroneous, and due regard shall be given to the opportunity
of the trial court to judge of the credibility of the witnesses."
Fed.R.Civ.P. 52(a).
3 Rule 52(c) provides as follows in pertinent part: "If during a trial
without a jury a party has been fully heard on an issue and the court finds
against the party on that issue, the court may enter judgment as a matter
of law against that party with respect to a claim or defense that cannot
under the controlling law be maintained or defeated without a favorable
finding on that issue . . . . Such a judgment shall be supported by findings
of fact and conclusions of law as required by subdivision (a) of this rule."
Fed.R.Civ.P. 52(c).

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firm conviction that a mistake has been committed.'" Anderson, 470
U.S. at 574 (quoting United States v. United States Gypsum Co., 333
U.S. 364, 395 (1947)).

III

Burns worked as a salesperson for appellee UniNet, Inc., during
two separate periods. Her first tenure began in December 1990 and
continued through August 1992, when she resigned voluntarily. Uni-
Net rehired Burns in October 1993. She was discharged from employ-
ment in March 1995.

Burns presented evidence that Bjorn, the person she identified as
the architect of the alleged hostile environment giving rise to her
claims, was a difficult manager for whom to work. He was given to
inappropriate and unprofessional outbursts in the workplace. More-
over, several former UniNet employees testified as to his flirtatious
behavior. On one occasion, after a group of employees met for "happy
hour" after work -- a common occurrence -- he kissed one of his
subordinates. When the employee expressed her disapproval of his
actions, however, no further actions of the sort were repeated.

Apart from the evidence of the kissing incident mentioned above
and one other incident in which Bjorn offered to have an affair with
a female subordinate "if [she] would be interested," neither of which
involved Burns, the trial was bereft of evidence of an overtly sexual
nature.4 Counsel for Burns concedes that his theory of the sexual
harassment claim in the case was something of a hybrid:

           The sexual harassment of Burns at UniNet cannot be
          packaged to fit nicely within the framework of either a "quid
          pro quo" or "hostile work environment" analysis; however,
          an impartial review of the evidence presented at trial clearly
          demonstrates that Burns suffered abusive mal-treatment dur-
          ing the course of her employment which adversely effected
          the conditions of her employment and consequently her abil-
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4 On one occasion, after he had separated from his wife, Bjorn com-
plained to Burns that he could not find a woman who could "boil a pot
of water." Burns also testified that Bjorn stared at her legs.

                    4
          ity to achieve the level of performance otherwise obtainable
          solely and exclusively as a result of her gender.

Appellant's Brief at 35.5

Ultimately, therefore, Burns undertook to prove her sexual harass-
ment claim through proof of the existence of a "pattern" allegedly fol-
lowed by Bjorn whereby, shortly after a woman in whom he was
personally interested started to work at UniNet, he would flirt with
and otherwise seek to create a "bond" with her by providing extra
assistance and mentoring. Under this theory, if and when such a
female subordinate made clear her lack of any romantic interest in
Bjorn, then he would turn on her and act purposefully to make her
workday unpleasant and to diminish the quality of her work product.
On the other hand, there was evidence that one employee, who alleg-
edly submitted to Bjorn's advances, gained promotions and eventu-
ally became Bjorn's wife. While expressing skepticism, during trial,
as to the persuasiveness of this theory under the circumstances, the
district court clearly understood the underlying hypothesis of the sex-
ual harassment claim advanced by Burns. See J.A. at 231-34.

Thus, Burns adduced evidence that tended to suggest that while
Bjorn was generally "mean" to everybody and was prone to having
"fit[s]" of temper, see id. at 262-64, he was especially "emotionally
harassing" toward her, see id. at 201, after he came to believe she har-
bored no romantic interest in him. Burns voluntarily terminated her
first period of employment with UniNet, in part, because she found
Bjorn's treatment of her insufferable.

When Burns rejoined UniNet in 1993, she did so partly in reliance
on an assurance from her immediate supervisor that she would work
in a newly-opened office in Frederick, Maryland, and would have
limited contact with Bjorn. Her supervisor soon departed, however,
and she was once again required to have contact with Bjorn.
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5 The Supreme Court has noted that"quid pro quo and hostile work
environment are helpful, perhaps, in making a rough demarcation
between cases in which threats are carried out and those where they are
not or are absent altogether, but beyond this are of limited utility." Bur-
lington Indus., Inc. v. Ellerth, 524 U.S. 742, 751 (1998).

                    5
The sales performance of the staff in the Frederick office declined
through the end of 1994 and all of the salespersons in that office, two
men and Burns, were put on probation. Burns attributed the deteriora-
tion in her performance to purposeful acts of her managers, including
Bjorn, to whom she ascribed a sexually discriminatory motive.

In November 1994, Burns filed a charge of discrimination with the
Equal Employment Opportunity Commission. Thereafter, according
to Burns, new and ever changing operating procedures were put into
place, which, again according to Burns, kept the sales staff off bal-
ance and in the dark as to what was required. Burns contends that
these changes were aimed at her and were animated by UniNet's and
Bjorn's retaliatory motives arising from the filing of her EEOC
charge.

Finally, by March 1995, Burns was nervous, anxious and barely
able to withstand the pressures of the workplace. After receiving a
memorandum pointing out some further deficiency in her perfor-
mance, and despairing over a planned management visit with her
major client, she had a "panic attack" and departed the office without
permission, leaving behind a memorandum asserting, in part, that she
was "unable to perform my duties." UniNet terminated her employ-
ment the next day for the reasons set forth in the memorandum of ter-
mination, which Burns introduced in evidence.

IV

As to the merits of her discrimination and retaliation claims, fully
cognizant of the burden placed upon her by the relevant standard of
review, Burns has mounted a frontal attack on the district court's find-
ings of fact. She has parsed the district court's memorandum opinion
and has identified what she contends are more than a dozen "factual
discrepanc[ies]" that, according to her view of the inferences reason-
ably arising from the evidence, fatally undermine the district court's
ultimate findings and conclusions that she failed to establish by a pre-
ponderance of evidence that she was the victim of sexual harassment
discrimination or retaliation.

We have closely examined the record and we are constrained to
reject Appellant's contention that the district court's critical findings

                     6
are not rooted in the evidence presented at trial. The court's findings
are based on the evidence and, equally important, the absence of evi-
dence. It is clear to us that the district court simply rejected -- as it
was entitled to do as the fact finder -- the host of inferences on which
her "pattern of conduct" theory of sexual harassment discrimination
claim hinged. Similarly, the district court declined to draw an infer-
ence of retaliation on the scant evidence supporting that claim. At bot-
tom, then, the district court's ultimate findings are clear and
unequivocal and reflect that the district court simply did not interpret
the evidence in the manner Burns hoped it would be interpreted.

A

As to the sexual harassment claim, the district court correctly iden-
tified the controlling legal principles. See J.A. at 636-40 (discussing,
inter alia, Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998);
Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998); and
Hartsell v. Duplex Prod., Inc., 123 F.3d 766 (4th Cir. 1997)). In light
of the district court's resort to the correct legal principles, the court's
ultimate findings, including its findings that: (1)"no evidence [estab-
lished] that Bjorn made sexual advances to Burns," J.A. at 636; (2)
"Burns experienced no overt sexual conduct by Bjorn or by any
supervisors," id.; (3) Burns "failed to offer any evidence that the con-
duct of Bjorn . . . occurred because of her gender," id. at 637; (4) the
actions complained of by Burns were "sexually neutral or, at most,
ambiguous," id. at 638; and (5) Bjorn's"conduct [did] not create an
environment that a reasonable person would find hostile or abusive,"
id. at 640, are not clearly erroneous. See Carter, 33 F.3d at 457 (eval-
uating the district court's conclusions as to the"factual sufficiency"
of the evidence of employment discrimination).6
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6 The Seventh Circuit has observed:

           Although it is beyond dispute that pure questions of law
          should be reviewed de novo, the existence of racial harassment
          in a hostile work environment involves an application of law (the
          standards governing the existence of racial harassment and hos-
          tile work environment discrimination) to facts (the specific dis-
          criminatory conditions alleged by the plaintiff). If the trial judge
          correctly states the law, then his findings as to whether the facts

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B

Our analysis of the record leads to the same conclusion with
respect to the retaliation claim. To make out a prima facie case of
retaliation under Title VII, 42 U.S.C. § 2000e-3, a plaintiff must show
that (1) the plaintiff engaged in a protected activity, such as filing a
complaint with the EEOC; (2) the employer took adverse action
against the plaintiff; and (3) the protected activity was causally con-
nected to the employer's adverse action. Beall v. Abbott Labs., 130
F.3d 614, 619 (4th Cir. 1997). Once this is shown, the burden shifts
to the employer to rebut the presumption of retaliation by articulating
a legitimate nonretaliatory reason for the adverse action. Id. The
plaintiff must then demonstrate that the employer's reason was mere
pretext for retaliation by proving "both that the reason was false, and
that discrimination was the real reason for the challenged conduct."
Id. (internal quotation omitted).

A plaintiff may demonstrate the third requirement of a prima facie
case -- that the protected activity was causally related to the employ-
er's adverse action -- by showing "essentially . . . that she was fired
after her employer became aware that she had filed a discrimination
charge." Williams v. Cerberonics, 871 F.2d 452, 457 (4th Cir. 1989).
Such proof, while clearly not conclusive in proving ultimate liability,
_________________________________________________________________

          meet the legal standard will be disturbed only if they are clearly
          erroneous. Our review would be more searching if the district
          court has committed an error of law, including one that "infect[s]
          a so-called mixed finding of law and fact, or a finding of fact that
          is predicated on a misunderstanding of the governing rule of
          law."

           Here the district judge properly understood and expressed the
          current legal standards for finding racial harassment in a hostile
          work environment. Because he did not misstate, misinterpret or
          misapply the law, we apply the clear error rule to his findings,
          for the defendant takes issue with the trial judge's view of the
          evidence, not with his view of the law.

Daniels v. Essex Group, Inc., 937 F.2d 1264, 1269-70 (7th Cir. 1991)
(citations omitted). As in Daniels, in the case at bar, Burns disagrees
with the district court's view of the evidence.

                    8
"certainly satisfies the less onerous burden of making a prima facie
case of causality." Id. (showing that firing occurred three months after
filing of discrimination complaint was sufficient to show causation);
see also Carter, 33 F.3d at 460.

On November 23, 1994, Burns notified Bjorn's superior that she
had been sexually harassed by Bjorn. On November 28, 1994, Burns
filed a complaint with the EEOC. Three months later, on March 10,
1995, Burns was fired. The passage of time between the filing of her
EEOC charge and Appellant's termination was only two weeks longer
than the time held sufficient to demonstrate prima facie causation in
Cerberonics. See 871 F.2d at 457.

Nevertheless, in the case at bar, the district court found that Burns
"offered no evidence to support the third element of her retaliation
claim . . . ." J.A. at 640-41.7 It went on to explain, however, that
"where no other evidence supports a finding of retaliatory motive, the
temporal proximity between the discovery [by the employer] of an
EEOC charge and an employee's termination is insufficient to show
a causal connection." Id. at 641.

The district court's factual conclusion is wholly consistent with
Fourth Circuit authority. In Cerberonics, this Court held that "mere
knowledge on the part of an employer that an employee it is about to
fire has filed a discrimination charge is not sufficient evidence of
retaliation to counter substantial evidence of legitimate reasons for
discharging that employee." 871 F.2d at 457. Evidentiary support for
the existence of UniNet's legitimate nonretaliatory motive in termi-
_________________________________________________________________

7 To be sure, one could read the district court's findings on this issue
to suggest that the court was focused on the existence vel non of a prima
facie case of retaliation, rather than on the ultimate question of whether
Burns had adduced sufficient evidence to persuade the district court of
the existence of UniNet's retaliatory motive for her termination. We are
satisfied, however, particularly in light of the district court's reliance on
Carter, which dealt expressly with a claim of retaliation under identical
circumstances, that the district court did not reject the proof as failing to
establish a prima facie case, but instead, ruled on the merits of the retali-
ation claim at the close of the plaintiff's case-in-chief, as Fed.R.Civ.P.
52 plainly authorizes.

                     9
nating Burns is found in evidence entered by Burns during her case-
in-chief. See J.A. at 412; see generally id. at 464-512. Thus, even
though the record in this case does not "overwhelmingly support[ ]
the trial court's finding of no retaliation," Cerberonics, 871 F.2d at
457, the district court nevertheless must be affirmed under the defer-
ential "clearly erroneous" standard of review."[W]here there are two
permissible views of the evidence, the factfinder's choice between
them cannot be clearly erroneous." Zfass v. Commissioner, 118 F.3d
184, 188 (4th Cir. 1997) (quoting Anderson, 470 U.S. at 574).8

V

Finally, Burns's counsel candidly admitted fault in failing to make
a timely request for jury trial, see J.A. at 48-60 ("The frailty of human
nature is neither an excuse nor a refuge, but the only accounting avail-
able."). He requested the district court to exercise its discretion under
Rule 39(b) to empanel a jury. See Malbon v. Pennsylvania Millers
Mut. Ins. Co., 636 F.2d 936, 940 n.12 (4th Cir. 1980). We discern no
abuse of discretion in the district court's denial of the motion.

VI

For the reasons set forth above, the judgment is

AFFIRMED.
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8 In the view we take of the case, it is unnecessary to consider the issue
of whether Southeastern Computer Consultants, Inc., as well as UniNet,
was subject to suit under Title VII.

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