                                                  Filed: June 24, 1998

                   UNITED STATES COURT OF APPEALS

                       FOR THE FOURTH CIRCUIT


                              No. 97-1673
                            (CA-95-1273-R)



Gloria W. Dowe,

                                                Plaintiff - Appellant,

          versus

Total Action Against Poverty in Roanoke Valley,

                                                 Defendant - Appellee.



                              O R D E R



     The court amends its opinion filed June 3, 1998, as follows:

     On page 4, first paragraph, line 3 -- the word “met” is

corrected to read “meet.”

                                          For the Court - By Direction



                                          /s/ Patricia S. Connor
                                                   Clerk
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

GLORIA W. DOWE,
Plaintiff-Appellant,

v.
                                                              No. 97-1673
TOTAL ACTION AGAINST POVERTY IN
ROANOKE VALLEY,
Defendant-Appellee.

Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
Jackson L. Kiser, Senior District Judge.
(CA-95-1273-R)

Argued: May 8, 1998

Decided: June 3, 1998

Before LUTTIG and WILLIAMS, Circuit Judges, and
TRAXLER, United States District Judge for the
District of South Carolina, sitting by designation.

_________________________________________________________________

Affirmed by published opinion. Judge Williams wrote the opinion, in
which Judge Luttig and Judge Traxler joined.

_________________________________________________________________

COUNSEL

ARGUED: Helen Jean Spence, BELLER & SPENCE, P.C., Chris-
tiansburg, Virginia, for Appellant. Jonathan Martin Rogers, JONA-
THAN ROGERS, P.C., Roanoke, Virginia, for Appellee.

_________________________________________________________________




                                                    - 2 -
OPINION

WILLIAMS, Circuit Judge:

Gloria W. Dowe appeals the district court's grant of summary
judgment to her former employer on her claims of employment dis-
crimination under 42 U.S.C.A. §§ 1981 (West 1994), 1983 (West
Supp. 1998), & 2000e et seq. (Title VII) (West Supp. 1998). Dowe
argues that summary judgment was inappropriate because she estab-
lished a prima facie case of retaliation under Title VII, and demon-
strated sufficient state involvement to invoke § 1983. We disagree. A
plaintiff cannot establish a prima facie case of retaliation when, as
here, the relevant decisionmaker was unaware that the plaintiff had
engaged in a protected activity. Similarly, a plaintiff cannot invoke
§ 1983 simply because a private actor is regulated and funded by the
State. Accordingly, we affirm the judgment of the district court.

I.

In 1965, Dowe, who is black, was hired by Total Action Against
Poverty (TAP) to work in its Head Start Program in Roanoke Valley,
Virginia. In 1986, Dowe became the Social Services Coordinator at
Head Start. Five years later, the position of Social Services Coordina-
tor was divided into two positions: Parent Involvement Coordinator
and Social Services Coordinator. Dowe was given her choice of posi-
tions and selected Parent Involvement Coordinator.

Shortly thereafter, Dowe decided that she disliked her new posi-
tion. As a result, Dowe asked the Director of the Head Start program,
Cleo Sims, if she could be the Social Services Coordinator. When
Sims, who is black, selected Annette Lewis, who is also black, for the
position of Social Services Coordinator, Dowe filed a Complaint with
the EEOC charging that her request to be named Social Services
Coordinator was denied on account of her race.1
_________________________________________________________________

1 Dowe also claimed that she was denied annual leave because she was
black. In dismissing this claim, the EEOC noted that Dowe had actually
conceded that "she did not have all her work completed" when she
requested leave. This concession, the EEOC concluded, provided TAP
with a legitimate, nondiscriminatory reason for denying Dowe annual
leave.

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                                                  - 3 -
Before TAP became aware of Dowe's complaint with the EEOC,
Dowe had been reprimanded for work-related deficiencies. In particu-
lar, Sims reprimanded Dowe for ignoring four requests to prepare a
work plan (the Plan) and for poor record keeping. After TAP became
aware of Dowe's complaint with the EEOC, numerous other failures
in her job performance were noted. Specifically, Sims reprimanded
Dowe for maintaining a poor filing system, failing to keep commit-
ments to several clients, and for "calling in sick" to avoid specific
work assignments.

Because of Dowe's failure to complete the Plan, Sims drafted one
for her. On June 1, 1992, Sims and Dowe met to discuss the proposed
Plan. Dowe disagreed with one of the Plan's objectives, however, and
refused to sign it. Dowe was informed that if she did not sign the Plan
by June 8, 1992, she would be placed on probation. Despite the threat,
Dowe continued her refusal to sign the Plan. On June 16, 1992, Dowe
was placed on probation.

On August 21, 1992, Dowe's charge of race discrimination was
dismissed by the EEOC. The EEOC found no violations of any statute
and concluded that Dowe was not a victim of discrimination. On
appeal, Dowe concedes that her initial charge of race discrimination
was without merit.

In late 1992, Dowe's probation ended, and she became a Family
Service Specialist. Within several months, Dowe was reprimanded by
Lewis, her new supervisor. In particular, Dowe was reprimanded for
not completing child abuse training, failing to collect the appropriate
parent surveys, and attending Parent Policy Council meetings without
permission. The following month, Dowe was reprimanded by Lewis
for disrupting a Parent Policy Committee meeting. Dowe responded
to the reprimand by informing Lewis that she would continue to
attend Parent Policy Committee meetings despite being directed not
to do so. Despite Dowe's insubordination, no action was taken against
her at this time.

In December of 1994, Dowe was placed under the supervision of
Katie Weddington. Although Dowe's caseload was reduced, Dowe's
job performance, including her record keeping, did not improve. As
a result of these deficiencies, Dowe was placed on probation for a

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                                                  - 4 -
second time. Under the terms of her probation, Dowe was given spe-
cific dates upon which to complete her projects and paperwork. On
April 13, 1995, after Dowe failed to meet these deadlines, Weddington
fired Dowe.

Dowe filed suit in the United States District Court for the Western
District of Virginia alleging employment discrimination under 42
U.S.C.A. §§ 1981, 1983, and 2000e et seq. In particular, Dowe con-
tends that she was terminated by TAP in retaliation for having filed
a charge of race discrimination with the EEOC. Following discovery,
TAP moved for summary judgment. After briefing and oral argument,
the district court granted TAP's motion. In ruling on her Title VII
claim, the district court found that Dowe failed to meet "her burden
of establishing the required causal connection between the protected
activity and the adverse action." (J.A. at 201.) With respect to her
§ 1981 claim, the district court found that she failed to establish that
her "termination was racially motivated." (J.A. at 202.) Finally, the
district court found that Dowe had "not demonstrated sufficient state
involvement to invoke section 1983." (J.A. at 203.) This appeal fol-
lowed.

II.

On appeal, Dowe contends that she (1) established a prima facie
case of retaliation under Title VII and (2) demonstrated sufficient
state involvement to invoke § 1983.2 As a result, she argues that the
district court erred in granting summary judgment to TAP. We review
de novo the district court's decision to grant TAP summary judgment.
See Halperin v. Abacus Tech. Corp., 128 F.2d 191, 196 (4th Cir.
1997). Summary judgment is appropriate only "if the pleadings, depo-
sitions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to
any material fact." See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). In deciding whether there is a genuine
issue of material fact, the evidence of the nonmoving party is to be
believed and all justifiable inferences must be drawn in her favor. See
_________________________________________________________________

2 On appeal, Dowe does not challenge the district court's finding that
she failed to establish a claim under § 1981.

                    4




                                                  - 5 -
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). With
these principles in mind, we address Dowe's arguments in turn.

A.

To prevail on her retaliation claim, Dowe must satisfy the three-
step proof scheme established in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). First, Dowe must establish, by a preponderance
of the evidence, a prima facie case of retaliation. Once established,
the burden shifts to TAP to rebut the presumption of retaliation by
articulating non-retaliatory reasons for its actions. Cf. Texas Dep't of
Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). If TAP
meets its burden of production, the presumption raised by the prima
facie case is rebutted and "drops from the case," id. at 255 n.10, and
Dowe bears the ultimate burden of proving that she has been the vic-
tim of retaliation, see St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502,
506-11 (1993).

On appeal, Dowe first contends that she established a prima facie
case of retaliation under Title VII. To establish a prima facie case of
retaliation under Title VII, a plaintiff is required to prove (1) that she
engaged in a protected activity; (2) that an adverse employment action
was taken against her; and (3) that there was a causal connection
between the first two elements. See Hopkins v. Baltimore Gas & Elec-
tric Co., 77 F.3d 745, 754 (4th Cir.), cert. denied, 117 S. Ct. 70
(1996). It is undisputed that Dowe engaged in protected activity when
she filed her discrimination charge with the EEOC. See, e.g., Carter
v. Ball, 33 F.3d 450, 460 (4th Cir. 1994) (filing a complaint with the
EEOC is a protected activity). It is also undisputed that an adverse
employment action was taken against Dowe. See, e.g., Hartsell v.
Duplex Products, Inc., 123 F.3d 766, 775 (4th Cir. 1997) (recognizing
that discharge is an adverse employment action). To survive summary
judgment, therefore, Dowe must have evidence from which a reason-
able factfinder could conclude that a causal connection exists between
the protected activity and the adverse action. See Anderson, 477 U.S.
at 248 (holding that summary judgment is appropriate"if the evidence
is such that a reasonable jury could [not] return a verdict for the non-
moving party"); see also Ross v. Communications Satellite Corp., 759
F.2d 355, 364 (4th Cir. 1985) (noting that "the nonmoving party must
produce `specific facts showing that there is a genuine issue for trial,'

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                                                   - 6 -
rather than resting upon the bald assertions of his pleadings" (quoting
Fed. R. Civ. P. 56(e))); Felty v. Graves-Humphreys Co., 818 F.2d
1126, 1128 (4th Cir. 1987) (noting that there is an affirmative duty
for "the trial judge to prevent factually unsupported claims and
defenses from proceeding to trial" (internal quotation marks omit-
ted)).

To satisfy the third element, the employer must have taken the
adverse employment action because the plaintiff engaged in a pro-
tected activity. Since, by definition, an employer cannot take action
because of a factor of which it is unaware, the employer's knowledge
that the plaintiff engaged in a protected activity is absolutely neces-
sary to establish the third element of the prima facie case. See, e.g.,
Grizzle v. Travelers Health Network, Inc., 14 F.3d 261, 267 (5th Cir.
1994) (dismissing claim because no evidence that relevant decision-
maker knew that plaintiff had complained of discrimination); Hudson
v. Southern Ductile Casting Corp., 849 F.2d 1372, 1376 (11th Cir.
1988) (dismissing claim because relevant decisionmaker was unaware
that plaintiff had filed a complaint with the EEOC); Talley v. United
States Postal Serv., 720 F.2d 505, 508 (8th Cir. 1983) (dismissing
claim because no evidence that supervisor who made adverse person-
nel decision was aware that plaintiff had engaged in a protected activ-
ity). Here, it is undisputed that Weddington -- the relevant
decisionmaker -- was unaware that Dowe had ever filed a complaint
with the EEOC. As a consequence, Dowe cannot establish the neces-
sary causal connection between her filing a complaint with the EEOC
and her termination. It necessarily follows, therefore, that Dowe can-
not establish a prima facie case of retaliation.

In addition, we note that over three years lapsed between the pro-
tected activity and the adverse employment action. This Court has
held that evidence that the alleged adverse action occurred shortly
after the employer became aware of the protected activity is sufficient
to "satisf[y] the less onerous burden of making a prima facie case of
causa[tion]" Williams v. Cerberonics, Inc., 871 F.2d 452, 457 (4th
Cir. 1989). We believe the opposite to be equally true. A lengthy time
lapse between the employer becoming aware of the protected activity
and the alleged adverse employment action, as was the case here,
negates any inference that a causal connection exists between the two.
See Burris v. United Tel. Co., 683 F.2d 339, 343 (10th Cir. 1982)

                    6




                                                  - 7 -
(holding that three years between the protected activity and the
adverse employment action was too long to establish the third ele-
ment); Clark v. Chrysler Corp., 673 F.2d 921, 930 (7th Cir. 1982)
(holding that two-year time lapse negated any inference of causal con-
nection). Indeed, were this not the case, an employee could guarantee
his job security simply by filing a frivolous complaint with the EEOC
on his first day of work. Title VII was not enacted to guarantee tenure
in the workplace.

In sum, we conclude that Dowe has failed to forecast evidence suf-
ficient to establish that a causal connection exists between the pro-
tected activity and the adverse employment action. 3 As a result, Dowe
cannot establish a prima facie case of retaliation under Title VII.
Accordingly, the district court did not err in granting TAP's motion
for summary judgment. See Fed. R. Civ. P. 56(c); see also Celotex,
477 U.S. at 322 ("[T]he plain language of Rule 56(c) mandates the
entry of summary judgment, after adequate time for discovery and
upon motion, against a party who fails to make a showing sufficient
to establish the existence of an element essential to that party's case,
and on which that party will bear the burden of proof at trial.").4

B.

We now consider whether the actions of TAP give rise to liability
under § 1983. To prevail on her § 1983 claim, Dowe must establish:
_________________________________________________________________

3 We also note that it is undisputed that Dowe was reprimanded by her
then supervisor on several occasions prior to filing her complaint with
the EEOC. This fact also undermines Dowe's contention that she was
terminated because she participated in a protected activity.

4 Even assuming that Dowe forecasted evidence sufficient to establish
a causal connection between the protected activity and the adverse action
-- therefore establishing a prima facie case of retaliation -- TAP articu-
lated legitimate, nonretaliatory reasons for Dowe's discharge (i.e., her
poor job performance, her failure to keep the terms of her probation, and
her disruptive behavior). To avoid summary judgment, therefore, Dowe
must also forecast evidence sufficient to establish that she was the victim
of retaliation (i.e., TAP's nonretaliatory reason was pretextual). As the
district court noted, Dowe simply failed to do so. In fact, Dowe admitted
that her performance "came up short." (J.A. at 120.)

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                                                  - 8 -
(1) that she has been deprived of a right, privilege or immunity
secured by the Constitution or laws of the United States; and (2) that
the conduct complained of was committed by a person acting under
the color of state law. See 42 U.S.C.A.§ 1983. The district court con-
cluded that Dowe failed to establish the second element. For the rea-
sons that follow, we agree.

Acting under color of state law is equivalent to that of state action
under the Fourteenth Amendment. See Rendell-Baker v. Kohn, 457
U.S. 830, 838 (1982) (citing United States v. Price, 383 U.S. 787, 794
n.7 (1966)). The state action requirement "reflects judicial recognition
of the fact that `most rights secured by the Constitution are protected
only against infringement by governments.'" Lugar v. Edmondson Oil
Co., 457 U.S. 922, 936 (1982) (quoting Flagg Bros., Inc. v. Brooks,
436 U.S. 149, 156 (1978)). "This fundamental limitation on the scope
of constitutional guarantees `preserves an area of individual freedom
by limiting the reach of federal law' and `avoids imposing on the
State, its agencies or officials, responsibility for conduct for which
they cannot fairly be blamed.'" Edmonson v. Leesville Concrete Co.,
500 U.S. 614, 619 (1991) (quoting Lugar, 457 U.S. at 936-37). The
issue presented in this case is whether TAP engaged in state action
when it discharged Dowe.

By asserting that TAP is both regulated and funded by the federal
government and, to a lesser extent, by the Commonwealth of Vir-
ginia, Dowe contends that she has demonstrated sufficient state
involvement to invoke § 1983. We disagree. To the extent Dowe con-
tends that TAP is funded and regulated by the federal government,
she is really making the case that TAP was acting under the color of
federal law. If so, the claim should have been brought under Bivens
v. Six Unknown Agents, 403 U.S. 388 (1971), rather than § 1983. As
the Supreme Court made clear in Wheeldin v. Wheeler, 373 U.S. 647
(1963), § 1983 does not apply to federal actors. Id. at 650 n.2. To the
extent Dowe contends that TAP is funded and regulated by the Com-
monwealth, she, for the reasons that follow, has simply failed to dem-
onstrate sufficient state involvement to invoke§ 1983.

Although Dowe refers to TAP as "a creature of statute," she fails
to provide even one example of how the Commonwealth regulates
Head Start programs. Even assuming that the Head Start program in

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                                                  - 9 -
question is extensively regulated by the Commonwealth, "[t]he mere
fact that a business is subject to state regulation does not by itself con-
vert its action into that of the State for purposes of the Fourteenth
Amendment." Jackson v. Metropolitan Edison Co., 419 U.S. 345, 350
(1974) (footnote omitted). Rather, Dowe must also show that "there
is a sufficiently close nexus between the State and the challenged
action of the regulated entity so that the action of the latter may be
fairly treated as that of the State itself." Id. at 351; see also Lugar, 457
U.S. at 937 ("[C]onduct allegedly causing the deprivation of a federal
right" is only actionable under section 1983 when the conduct is
"fairly attributable to the state.").

Dowe also argues that the receipt of state and municipal grants and
an exemption from Virginia State personal property taxes provides a
sufficient nexus to invoke application of § 1983.5 As support, Dowe
relies principally upon this Court's decision in Edwards v. Maryland
State Fair, 628 F.2d 282 (4th Cir. 1980). In Edwards, our finding of
state action was predicated on the fact that the corporation running the
Maryland State Fair, albeit private, received substantial funding from
the State of Maryland. Id. at 285.

Only one year after our decision in Edwards, however, the
Supreme Court held that a private nursing home was not a state actor
despite the fact that it was financed from almost exclusively public
sources. See Blum v. Yaretsky, 457 U.S. 991, 1011 (1981) (noting that
the State paid the medical expenses of more than ninety percent of the
patients). The following year, the Supreme Court held that a private
school funded primarily by the State was not a state actor. See
Rendell-Baker v. Kohn, 457 U.S. 830, 840 (1982). Of particular
importance here, the Supreme Court specifically held that the "receipt
of public funds does not make [an agency's] discharge decisions acts
of the State." Id. Rather, to establish state action, there must be evi-
dence that the terminations were "compelled or . . . influenced by
[the] State." Id. at 841.
_________________________________________________________________

5 Dowe does not indicate either how much TAP receives in state and
municipal grants or what percentage of TAP's budget is funded by the
grants.

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In light of the Supreme Court's decisions in Blum and Rendell-
Baker, it is clear that Edwards, to the extent that it holds that substan-
tial funding by the state is sufficient to invoke § 1983, is no longer
good law. See Smith v. Moore, 137 F.3d 808, 821 (4th Cir. 1998)
(noting that a decision of this Court is no longer binding if called into
question by an intervening decision of the United States Supreme
Court); Industrial Turnaround Corp. v. NLRB, 115 F.3d 248, 254 (4th
Cir. 1997) (same). It is also worth noting that no Fourth Circuit case
has cited Edwards since the Supreme Court decided Blum and
Rendell-Baker. Indeed, the Ninth Circuit recently recognized that its
counterpart to Edwards was "implicitly overruled by Rendell-Baker."
Morse v. North Coast Opportunities, Inc., 118 F.3d 1338, 1341 (9th
Cir. 1997) (recognizing that Supreme Court's holding in Rendell-
Baker undermines a prior Ninth Circuit opinion that found significant
funding and regulations alone would suffice to establish governmental
action); cf. Gilmore v. Salt Lake Community Action Program, 710
F.2d 632, 636 (10th Cir. 1983) (noting that prior decision "seem[ed]
questionable in light of [Rendell-Baker]").

The central inquiry in determining whether a private party's con-
duct will be regarded as action of the government is whether the party
can be described "in all fairness" as a state actor. See United Auto
Workers v. Gaston Festivals, Inc., 43 F.3d 902, 906 (4th Cir. 1995).
In Nail v. Community Action Agency of Calhoun County, 805 F.2d
1500 (11th Cir. 1986) (per curiam), the Eleventh Circuit was pre-
sented with the precise issue facing this Court. A local Head Start
program received significant federal and state funding. An employee
that had been terminated by the program brought suit under § 1983.
Because the personnel decision was not controlled by state regula-
tions, the Eleventh Circuit held that the Head Start program could not
be described "in all fairness" as a state actor. See id. at 1501-02 (citing
Rendell-Baker, 457 U.S. at 840); see also Morse, 118 F.3d at 1343
(holding that the actions of a local Head Start program could not be
fairly attributed to the government).

Like the adverse employment action in Blum, Rendell-Baker, and
Nail, the personnel decision here was not controlled by the Common-
wealth of Virginia. Typically, a state "can be held responsible for a
private decision only when it has exercised coercive power or has
provided such significant encouragement, either overt or covert, that

                     10




                                                   - 11 -
the choice must in law be deemed to be that of the State." Blum v.
Yaretsky, 457 U.S. 991, 1004 (1981). Because Dowe did not present
sufficient evidence that the Commonwealth was involved in TAP's
decision to terminate her employment, we do not believe that TAP
can be described "in all fairness" as a state actor. Accordingly, the
district court did not err in granting TAP's motion for summary judg-
ment.

III.

For the foregoing reasons, the judgment of the district court is
affirmed.

AFFIRMED

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