UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DIANE P. MCNAIR,
Plaintiff-Appellant,

v.
                                                                   No. 98-1110
COMPUTER DATA SYSTEMS,
INCORPORATED (CDSI),
Defendant-Appellee.

Appeal from the United States District Court
for the District of South Carolina, at Aiken.
Charles E. Simons, Jr., Senior District Judge.
(CA-94-3509-1-6BC)

Argued: December 2, 1998

Decided: January 26, 1999

Before HAMILTON, LUTTIG, and KING, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: John Paul Batson, Augusta, Georgia, for Appellant. Kath-
ryn Thomas, GIGNILLIAT, SAVITZ & BETTIS, Columbia, South
Carolina, for Appellee. ON BRIEF: William Sussman, Augusta,
Georgia, for Appellant. Stephen T. Savitz, GIGNILLIAT, SAVITZ &
BETTIS, Columbia, South Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Plaintiff-appellant Diane McNair appeals from an order of the
United States District Court for the District of South Carolina grant-
ing summary judgment to the defendant-appellee Computer Data Sys-
tems, Inc., on her Title VII claims of racial and sexual discrimination
and retaliation. For the reasons that follow, we affirm.

I.

In 1991, Computer Data Systems, Inc. (CDSI) hired Diane McNair,
a black female, for the position of Senior Systems Engineer. CDSI
had previously been contracted by the General Services Administra-
tion (GSA) to provide automated data processing support to a number
of federal government agencies, including the Department of Energy
(DOE) at its Savannah River Site in Aiken, South Carolina. McNair
was assigned to the DOE Help Desk Support task, a nine-member
team charged with providing computer assistance to DOE end-users
at the Savannah River Site. Pursuant to CDSI's contract with GSA,
each employee was assigned a GSA contract title and skill level that
together determined the rate at which CDSI billed GSA for the ser-
vices of that employee. Because the GSA contract titles were based
solely on the needs of the individual subscribing federal agency, they
did not necessarily reflect the employees' actual titles with CDSI.
That is to say, each employee's compensation and terms of employ-
ment with the company were determined without respect to the GSA
contract title to which he might at any one time be assigned.

During negotiations in late 1993 to extend CDSI's commitment to
provide Help Desk support to DOE systems users, CDSI submitted a
new staffing proposal, modified at the behest of DOE representative
Joe Kleshick to reflect more accurately the support functions the com-
pany was actually performing at the Savannah River Site. As a result

                    2
of the agreed-upon reorganization, one "senior software engineer" slot
-- the contract title to which McNair had until that point been
assigned -- was replaced with the lower contract title of "software
system programmer/analyst," thus reducing the cost to GSA of the
company's services. Explaining that her compensation, duties, and
terms of employment with CDSI would not be affected by the change,
McNair's supervisors reassigned her to the newly created "software
system programmer/analyst" contract title.

Unhappy with the switch in her contract title and unsatisfied by the
company's explanations, McNair wrote a letter to DOE Human
Resources Contractor Relations department dated November 2, 1993,
inquiring as to why her contract title had been changed. DOE officials
notified representatives of both CDSI and GSA of McNair's letter,
and began an investigation into her concerns about the manner in
which her contract title had been changed. On November 5, 1993,
three days after McNair's initial letter to DOE, George Peacock, a
Group Manager at CDSI, met with McNair and instructed her that any
future grievances should be brought in a proper forum, and that she
was not to communicate further with DOE, CDSI's client, about this
matter. In spite of these explicit instructions not to communicate with
DOE, McNair spoke to a DOE investigator on November 15 and
wrote a follow-up letter on November 17. On January 6, 1994, she
met personally with the Director of DOE's Office of Economic
Impact and Diversity.

In early February, McNair's direct supervisor, Alan Wingard,
assigned her the project of organizing all DOE software for the pur-
pose of identifying and destroying software that was obsolete. In
anticipation of a planned move to a new site, Wingard gave McNair
nine days to complete the task. McNair argued with Wingard about
the feasibility of the project, fell behind, and ultimately suffered a
severe asthma attack before the project was completed. As a result of
that attack, appellant was absent from work for three weeks, during
which time she refused to comply with the company's recently
adopted call-in procedures for sick employees. When she returned to
work on March 14, McNair was relieved from her Help Desk duties
so that she could pack her office for the scheduled move, as her co-
workers had done in her absence. Despite being given more than two
full days to complete a packing job each of her co-workers had fin-

                    3
ished in one, McNair did not have her office ready when the movers
arrived as scheduled on March 16, and in fact was not even present
at the appointed time. Two days later, on March 18, Project Manager
Chuck Gillespie issued McNair a written Reprimand/Warning for vio-
lating CDSI policy with respect to the call-in procedures, failing to
complete the move to a new building in a timely fashion, being away
from her work area without authorization for two hours on the day of
the move, and failing to follow her supervisor's instructions.

In April, 1994, just over a month after she received this reprimand,
McNair filed a Charge of Discrimination with the EEOC in which she
alleged that she had been "discriminated against in that [her] job title
was changed" and that she had been "harassed in that [she] ha[d] been
given unrealistic job assignments with deadlines . . . and [had] been
disciplined by [her supervisor]." She specifically alleged that the
harassment and discipline were "in retaliation for filing a complaint
with the DOE."

In December of that year, McNair filed a complaint against CDSI
in United States District Court for the District of South Carolina on
the basis of these allegations of discrimination and retaliation. In the
course of discovery, defendant CDSI learned that McNair had falsi-
fied her educational credentials and job history on her resume and
application. Citing its long-standing policy of firing employees who
are discovered to have made material misrepresentations on their
resumes and job applications, CDSI terminated McNair's employ-
ment with the company in May, 1995.

McNair then filed a second EEOC charge alleging that her termina-
tion was in retaliation for her complaint and thus constituted an addi-
tional violation of Title VII. She subsequently amended her complaint
in this action alleging, inter alia, that her contract title was changed
on the basis of her sex and race, and that CDSI retaliated against her
through unrealistic job assignments, discipline, and, ultimately, dis-
charge.

The district court adopted the recommendation of a magistrate
judge in granting summary judgment in favor of the defendant on the
claim that CDSI violated Title VII by changing McNair's contract
title. The court also granted -- and this in spite of the magistrate's

                     4
recommendations to the contrary -- defendant's motion for summary
judgment on plaintiff's claims of retaliation. McNair appeals from the
district court's order granting summary judgment to the defendants on
all counts.1

II.

Appellant contends first that the district court erred in granting
summary judgment on her claim that CDSI discriminated against her
on the basis of sex and race by changing her GSA contract title. We
disagree.

Title VII prohibits discrimination on the basis of race or sex with
respect to "compensation, terms, conditions, or privileges of employ-
ment." 42 U.S.C. § 2000e-2(a)(1). In order to establish a prima facie
case of discrimination under this provision of Title VII, an employee
must present evidence showing that she suffered"adverse employ-
ment action" because of her race or sex. St. Mary's Honor Center v.
Hicks, 509 U.S. 502, 507 (1993). Not every employment decision that
displeases the employee constitutes an "adverse employment action"
for the purposes of Title VII, however. Rather, as we have repeatedly
recognized, "there are many interlocutory or mediate decisions having
no immediate effect upon employment conditions which were not
intended to fall within the direct proscriptions of[Title VII]." Page
v. Bolger, 645 F.2d 227, 233 (4th Cir. 1981). Instead, the disparate
treatment theory of sexual or racial discrimination-- the theory upon
which this first claim is based -- "focuse[s] on the question whether
there has been discrimination in what could be characterized as ulti-
mate employment decisions such as hiring, granting leave, discharg-
ing, promoting and compensating." Id. at 233.
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1 The district court also granted summary judgment to the defendant on
plaintiff's claim of a hostile work environment based on race and gender.
It is not clear from her submissions whether McNair continues to press
her appeal from the district court's order insofar as it concerned her hos-
tile environment claim. In any event, we affirm the award of summary
judgment on plaintiff's hostile environment claim on the reasoning of the
district court.

                    5
We agree with the district court that appellant failed to satisfy her
burden of presenting a prima facie case of discrimination because the
change in her GSA contract title was not attended by a commensurate
reduction in privileges, responsibilities, compensation, or benefits.
We are satisfied that the mere administrative change in contract title,
far from rising to the level of an "ultimate employment decision," is
properly characterized as one of the countless "interlocutory or medi-
ate" employment decisions that simply are not, without more, action-
able under Title VII. See, e.g.,Flaherty v. Gas Research Institute, 31
F.3d 451, 456 (7th Cir. 1994) (semantic change in title and change in
supervisor not actionable under analogous provision of ADEA);
Crady v. Liberty Nat'l Bank & Trust Co., 993 F.2d 132, 136 (7th Cir.
1993) (lateral transfer with semantic change in title and alteration of
job responsibilities similarly not actionable under ADEA); Harlston
v. McDonnell Douglas Corp., 37 F.3d 379, 382 (8th Cir. 1994) (reas-
signment to new position with no diminution in title, salary, or bene-
fits insufficient to establish adverse employment action).2

III.

Appellant next argues that the district court erred in granting sum-
mary judgment in favor of the defendant on her claim that CDSI vio-
lated 42 U.S.C. § 2000e-3(a) by retaliating against her for filing a
complaint with DOE -- the November 2, 1993 letter-- about the
change in her contract title. Again, we disagree.
_________________________________________________________________

2 McNair contends that the change in her GSA contract title would ulti-
mately lead to a discriminatory failure to promote, because only individ-
uals with the higher GSA job title received promotions. However,
McNair never alleged denial of promotion in either of her two EEOC
charges, and she is therefore precluded from litigating such a claim.
Evans v. Technologies Applications & Serv. Co., 80 F.3d 954, 962-64
(4th Cir. 1996); King v. Seaboard Coast Line, 538 F.2d 581, 583 (4th
Cir. 1976). Even were we to consider appellant's claim that the change
in contract title adversely affected her chances for promotion, we would
still conclude that while actual failure to promote constitutes an action-
able "ultimate employment decision," the particular employment action
in question, as a decision of the "interlocutory or mediate" variety, does
not.

                    6
Section 2000e-3(a) provides, in relevant part, that,

          [i]t shall be an unlawful employment practice for an
          employer to discriminate against any of his employees . . .
          because he has opposed any practice made an unlawful
          employment by this subchapter, or because he has made a
          charge, testified, assisted, or participated in any manner in
          an investigation, proceeding, or hearing under this subchap-
          ter.

In order to establish a prima facie case of retaliation under this sec-
tion, plaintiff must show 1) that she engaged in protected activity
under Title VII; 2) that the employer thereafter took adverse employ-
ment action against her; and 3) a sufficient causal connection existed
between her protected activity and the employer's adverse action.
Hopkins v. Baltimore Gas and Elec. Co., 77 F.3d 745, 754 (4th Cir.
1996).

Although the magistrate judge concluded that appellant had satis-
fied her burden of presenting evidence to support a prima facie show-
ing of retaliation, the district court held that McNair had not
demonstrated that she had suffered any legally cognizable "adverse
employment action" prior to her termination. Citing Page v. Bolger
and Mattern v. Eastman Kodak Co., 104 F.3d 702 (5th Cir. 1997), a
recent Fifth Circuit opinion applying the Page "ultimate employment
decision" standard in the context of a claim of unlawful retaliation,
the district court, while not addressing the question whether McNair's
complaint to DOE satisfied the "protected activity" prong, held that
the written reprimand and the "unrealistic job assignments with dead-
lines" did "not amount to adverse employment actions" sufficient to
support a Title VII claim of retaliation "because of their lack of con-
sequence." J.A. at 528.

We agree with the district court that appellant failed to satisfy her
burden of presenting evidence to support a prima facie case of dis-
criminatory retaliation, but do so without proceeding to the contested
question whether the Page v. Bolger standard for adverse employ-
ment actions in discrimination claims brought under section 2000e-
2(a) is applicable in the context of a claim of prohibited retaliation
brought under the differently-worded section 2000e-3(a). Compare

                    7
Mattern v. Eastman Kodak, 104 F.3d 702 (5th Cir. 1997), and
Ledergerber v. Stangler, 122 F.3d 1142, 1144 (8th Cir. 1997) (hold-
ing in retaliation case that only adverse employment actions that "rise
to the level of an ultimate employment decision[are] intended to be
actionable under Title VII"), with Wideman v. Wal-Mart Stores, Inc.,
141 F.3d 1453, 1456 (11th Cir. 1998) ("Title VII's protection against
retaliatory discrimination extends to adverse actions which fall short
of ultimate employment decisions."). Rather, we base our affirmance
on appellant's failure even to show that the activity she had engaged
in was protected from retaliation under the terms of Title VII.

This court has recognized, consistent with the express language of
section 2000e-3(a), that an employer may not retaliate against an indi-
vidual either for "opposing discriminatory practices in the workplace"
or for "participating in an ongoing investigation or proceeding under
Title VII." Laughlin v. Metropolitan Washington Airports Auth., 149
F.3d 253, 259 (4th Cir. 1998). Once appellant filed her first charge
with the EEOC, the protections of the "participation clause" were
unquestionably triggered. Because appellant alleges that CDSI retali-
ated against her for actions taken before she filed her first EEOC
charge, however, we need only consider this claim under the terms of
the section's "opposition clause."

In prior cases, we have held that the section's"opposition clause,"
with its seemingly open-ended reference to any activity that can prop-
erly be characterized as "opposing" unlawful workplace discrimina-
tion, covers a broader range of employee conduct than does the more
tightly circumscribed "participation clause." See id. at 259 ("To qual-
ify as opposition activity an employee need not engage in the formal
process of adjudicating a discrimination claim."); Armstrong v. Index
Journal Co., 647 F.2d 441, 448 (4th Cir. 1981). Nonetheless, the "op-
position clause," by its very terms, requires that the employee at least
have actually opposed employment practices made unlawful by Title
VII. That is to say, the clause protects opposition neither to all unlaw-
ful employment practices nor to practices the employee simply thinks
are somehow unfair.

Under the by-now familiar McDonnell Douglas burden-shifting
scheme, McDonnell Douglas v. Green, 411 U.S. 792, 801-06 (1973),
in order to defeat appellee's motion for summary judgment appellant

                     8
had the burden of forecasting evidence that her letter of November 2,
1993, did in fact constitute just such protected opposition activity. In
recommending denial of defendant's motion for summary judgment,
the magistrate concluded that McNair had met this evidentiary bur-
den. Although the district court did not expressly consider the magis-
trate's recommendation on this question, we have and we do not
accept it.

We conclude instead that appellant failed to satisfy this burden
because she presented no evidence that the November 2, 1993, letter
to DOE officials contained even implicit or indirect opposition to
racial or sexual discrimination by anyone -- let alone anyone at
CDSI. Most significantly, in opposing CDSI's motion for summary
judgment, appellant never produced a copy of the letter -- the
asserted "protected activity" -- in question. Rather, the court had
before it, as we do today, only appellant's characterization of the let-
ter's contents and purpose. In her amended complaint and sworn
deposition testimony, appellant averred simply that in her November
2, 1993, letter she "express[ed] her concern" about DOE initiating a
change in her GSA contract title and inquired "why [her] Contract
title changed." Thus, the record at best supports a vague inference that
the letter manifested McNair's "concern" that she had generally been
treated unfairly, by either the client, DOE, or her employer, CDSI.
However, "a general complaint of unfair treatment does not translate
into a charge of illegal . . . discrimination." Barber v. CSX Distribu-
tion Servs., 68 F.3d 694, 702 (3rd Cir. 1995) (holding that protected
activity for purposes of identical anti-retaliation provision of ADEA
requires specific allegation of unlawful age discrimination). On the
record before the district court, then, there is no question that the
November 2, 1993, letter could not satisfy the "protected activity" ele-
ment of a prima facie case of retaliation.

While the evidence in the record is insufficient to establish that the
November 2, 1993, letter addressed concerns about racial or sexual
discrimination, thereby implicating the protections of the opposition
clause, appellee's own submissions confirm that subsequent commu-
nications between DOE officials and McNair did involve such allega-
tions. Thus, appellant does not limit her claim of protected activity,
as did the magistrate's report, to the November 2, 1993, letter alone.
Rather, she contends, more broadly, that she engaged in protected

                     9
activity by "asserting rights," presumably in the context of her later
discussions and communications with DOE. We cannot conclude,
however, that these later communications, expressly forbidden in
advance by McNair's supervisors at CDSI, constituted protected
activity either.

Although we have recognized that "[o]pposition activity encom-
passes utilizing informal grievance procedures as well as staging
informal protests and voicing one's opinions in order to bring atten-
tion to an employer's discriminatory activities," Laughlin, 149 F.3d
at 259, we have never concluded that repeated complaints to the
employer's client, in direct contravention of explicit instructions to
cease such communications, are protected. Quite to the contrary, we
have recognized that protection of "opposition" activity is not abso-
lute, Laughlin, 149 F.3d at 259 n.4 ("[T]he scope of protection for
activity falling under the participation clause is broader than for activ-
ity falling under the opposition clause."), and that consideration must
be given to the legitimate operational concerns of the employer. Thus,
in determining whether opposition activity warrants protection from
discipline, we "`balance 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." Armstrong v.
Index Journal Co., 647 F.2d at 448 (4th Cir. 1981) (quoting
Hochstadt v. Worcester Found. for Experimental Biology, 545 F.2d
222, 231 (1st Cir. 1976)).

Both parties concede that as a result of McNair's continued com-
plaints, DOE threatened to withdraw its participation in GSA's con-
tract with CDSI. We do not believe that Title VII, which established
comprehensive formal procedures for pursuing claims of racial and
sexual discrimination, nonetheless renders the employer defenseless
against any "informal" employee actions that threaten seriously to dis-
rupt, if not sever, its essential business relationships. At least where,
as here, an employer has informed its employee of the availability of
proper grievance procedures and instructed her to cease further com-
munications with the client, and the employee disobeys these explicit
instructions by continuing to pursue a course of conduct that threatens
the employer's business relationship with that client, we believe the
balance must be struck in favor of the employer. See Armstrong, 647

                     10
F.2d 441, 448 ("Section 704(a) . . . was not intended to immunize
insubordinate, disruptive, or nonproductive behavior at work.").
Accordingly, we cannot conclude that McNair's continued activities
in communicating her concerns to DOE representatives after she was
explicitly instructed not to do so were protected from even the modest
disciplinary action appellant alleges in this case.

IV.

Finally, we reject appellant's contention that the district court erred
in rejecting the magistrate's recommendation and granting summary
judgment in favor of the defendant on her claim that CDSI terminated
her employment in retaliation for the filing of her first EEOC charge.
Even assuming McNair had demonstrated a prima facie case that the
discharge was in retaliation for her participation in a formal EEOC
investigation, we conclude that the district court was correct in hold-
ing that she did not present evidence that CDSI's articulated, legiti-
mate non-retaliatory reason for her discharge was mere pretext.

We agree with the district court that appellant offered no satisfac-
tory rebuttal of defendant's evidence that she had misrepresented and
omitted material information concerning her educational credentials
and relevant job history from her resume and employment applica-
tion. McNair offered evidentiary responses that can most charitably
be described as incomplete, and in so doing utterly failed to meet her
burden of eliminating concerns that she was terminated because of
these material discrepancies. Hughes v. Bedsole, 48 F.3d 1376, 1383-
84 (4th Cir. 1995). Furthermore, McNair offered no evidence to con-
test her own signed Employment Application, introduced into the
record by CDSI, stating that:

          I understand that if in the judgment of the company there
          has been material misrepresentation or omission of the facts
          called for herein, that it will result in immediate dismissal.

Lastly, CDSI's evidence went unrebutted that the company regularly
enforced this established policy of terminating employees subse-
quently found to have lied on their resumes and applications, and had
in fact discharged at least twelve individuals on these grounds within
the preceding six years.

                    11
In light of appellant's failure to produce evidence to prove with "a
new level of specificity" that appellee's legitimate nonretaliatory rea-
sons for her termination were pretextual, Jiminez v. Mary Washington
College, 57 F.3d 369, 377 (4th Cir. 1995), the district court properly
held that her claim of retaliatory discharge could not survive appel-
lee's motion for summary judgment.3

V.

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

AFFIRMED
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3 Appellant argues that these material misrepresentations constitute
"after-acquired evidence" which the defendant has the burden of proving
as an affirmative defense. This argument is utterly without merit, as the
reasons proffered for McNair's termination are not"after-acquired evi-
dence" as that term is understood and applied by the Supreme Court.
McNair's misrepresentations were in fact CDSI's stated reason for her
termination, not some post-hoc justification advanced for the first time
in the context of litigation. Cf. McKennon v. Nashville Banner Publ'g.
Co., 513 U.S. 352 (1995).

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