UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CHEN K. HSU,
Plaintiff-Appellant,

v.

TOGO D. WEST, JR., Office of the
Secretary of the Army; UNITED
STATES OF AMERICA,
Defendants-Appellees,                                   No. 95-1667

and

LARRY FILLIAN, Director, Resources
Management; RONALD PETRIE,
Director, NVESD-AOD; STEVEN L.
HOLT,
Defendants.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, District Judge.
(CA-94-797-A)

Submitted: November 21, 1995

Decided: August 7, 1996

Before WILKINSON, Chief Judge, and HALL and NIEMEYER,
Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________
COUNSEL

Darrell M. Allen, Fairfax, Virginia, for Appellant. Helen F. Fahey,
United States Attorney, Jeri Kaylene Somers, Assistant United States
Attorney, Alexandria, Virginia, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Appellant Chen K. Hsu appeals the district court's order entering
judgment as a matter of law for Appellees. Finding no reversible
error, we affirm.

Hsu brought this case under Title VII of the Civil Rights Act of
1964, 42 U.S.C.A. § 2000e-16 (West 1994), alleging that Army
employees retaliated against her for filing a formal Equal Employ-
ment Opportunity (EEO) complaint alleging sexual harassment and
discrimination. Hsu's complaint sought damages against three Army
employees in their individual capacities under 42 U.S.C.A. §§ 1985,
1986 (West 1994) and included a state law claim of intentional inflic-
tion of emotional distress. The United States Attorney certified that
the individual employees were acting within the scope of their
employment. Thus, the district court ordered that the United States be
substituted as defendant in place of the individual defendants.

Following dismissal of several claims, Hsu presented her evidence
to a jury in federal court in January 1995. At the close of Hsu's evi-
dence, the Secretary moved for judgment as a matter of law pursuant
to Fed. R. Civ. P. 50(a). After oral argument, the district court granted
the motion. Hsu timely appealed.

Hsu began work as an electronics engineer at the Army's Center
for Night Vision and Electro-Optics ("NVESD") in Fort Belvoir, Vir-

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ginia, in 1989. In August or September 1992, Steve Holt, Hsu's
immediate supervisor, expressed concerns to Larry Fillian about
Hsu's performance on certain projects. Fillian is Holt's supervisor and
Hsu's second-level supervisor. Fillian met with Hsu to discuss the
performance issues in September 1992.

Holt detailed examples of Hsu's inappropriate office behavior in a
memorandum to Fillian in November 1992. Holt explained that Hsu's
behavior had become progressively disruptive to the work environ-
ment despite several counseling sessions. For example, Hsu com-
plained that people were spying on her and announced that she was
responsible for breaking up a conspiracy within the team to overthrow
Holt. Holt also described complaints he received from Hsu's co-
workers about the effect Hsu was having on the work environment.
Fillian did not immediately take action on the memorandum.

Hsu approached Fillian in November 1992 and complained that she
believed that she was being sexually harassed by Holt. Fillian asked
her to specify her charges in writing so that he could conduct a proper
investigation. Hsu gave Fillian an eighteen-page typewritten memo-
randum detailing her allegations against Holt on December 4, 1992.
However, the memorandum focused primarily on Hsu's viewpoint of
Holt's character and management practices. The memorandum failed
to offer any specific details about the incidents that Hsu considered
to be sexual harassment. Fillian asked Hsu to provide more specific
details, including times, dates, names, and particulars of the alleged
harassment.

Before Fillian received Hsu's next memorandum, Fillian received
complaints from Hsu's co-workers regarding Hsu's unusual, threaten-
ing behavior. The co-workers reported that Hsu had made threatening
comments and expressed their concern for their safety. Hsu also
threatened Holt when he inquired about a work assignment. Holt also
advised Fillian that several of Hsu's co-workers had informed him
about Hsu's bizarre behavior and their concern about their safety.

Fillian then received Hsu's second memorandum on February 8,
1993. Hsu provided more detailed descriptions of the events that she
considered to constitute sexual harassment. Fillian investigated the
allegations. Fillian met with every team member on Hsu's team, as

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well as other employees who worked on the same floor as Hsu. Fillian
asked specific questions related to the allegations, and received both
verbal and written responses from the employees. Fillian also held
meetings with the entire staff.

Fillian found no evidence to support Hsu's harassment claims.
Rather, he found evidence of Hsu's threatening and disruptive behav-
ior, including statements from employees who were not on Hsu's
team, but who observed Hsu's strange behavior. Fillian also noticed
a significant decrease in the team's productivity during this time
period.

Fillian prepared a memorandum dated February 16, 1993, setting
forth his findings and conclusions, and presented the memorandum to
Hsu. Fillian explained that Hsu could file a formal complaint through
the EEO process, and encouraged her to file a complaint if she wished
to pursue her claims. Fillian also sent a memorandum to the Director
of the Administration Operations Division regarding Hsu. That mem-
orandum recounted Hsu's threatening remarks to her supervisor and
other team members during the preceding months. Fillian detailed
Hsu's formal written sexual harassment charges submitted to Fillian
and through the formal EEO process. Fillian set forth his intent to
take punitive disciplinary action against Hsu for the false and mali-
cious statements that Hsu had attributed to her co-workers. Fillian's
memorandum also requested that the Director determine whether
Hsu's clearance should be suspended. After meeting with the Direc-
tor, however, Fillian elected to simply move Hsu to another office on
the same floor with the team.

Hsu filed a formal complaint of discrimination on February 22,
1993. Fillian gave Hsu permission to work on her EEO case during
office hours, and she also received an assignment that did not require
her to interact with her team members. However, Fillian soon
received complaints from the team members that Hsu was repeatedly
in the office and had become disruptive. Fillian described Hsu's
behavior during this time as "highly agitated."

Before Fillian could take any action, the EEO conducted a hearing
on May 11, 1993. In preparation for the meeting, Fillian reviewed the
medical records that Hsu provided. Those records revealed that Hsu

                    4
was diagnosed as having hypomania in 1992 and was referred to a
psychiatrist in February 1993.

Dr. Prasanna, the chief psychiatrist at the mental health clinic at
Fort Belvoir, reviewed Hsu's medical records and recommended that
Fillian remove Hsu from the work environment pending a mental sta-
tus evaluation. Fillian recommended to Dr. Buser, the Director of
NVESD, that Hsu be placed on administrative leave until Dr. Pra-
sanna or another qualified medical person could evaluate her. Thus,
after the EEO's fact-finding conference was completed, Hsu was ini-
tially placed on paid administrative leave for thirty days and her
access to classified information was suspended pending an evaluation
of her mental status in accordance with Army regulations. Fillian did
not intend or perceive this action to be punitive.

After Hsu's access to classified information was suspended, Fillian
forwarded the matter to the Central Clearance Facility ("CCF") in
accordance with Army regulations. Based on Hsu's failure to attend
any of the appointments scheduled for her at the Fort Belvoir mental
health facility, her paid administrative leave status was extended, ulti-
mately until March 1994, while CCF conducted a security clearance
review. Dr. Buser notified Hsu in April 1994 that she was being
placed on an indefinite suspension without pay pending a final deter-
mination by the CCF of the revocation of the security clearance.
However, Hsu remained on paid administrative leave status until she
submitted her resignation and accepted a new job with a private com-
pany in May 1994. Hsu consulted with her attorney prior to complet-
ing the resignation form. Hsu's security clearance was ultimately
reinstated by CCF.

Hsu filed this complaint in June 1994. On January 23, 1995, at the
close of her case in chief, the Secretary moved for judgment as a mat-
ter of law pursuant to Fed. R. Civ. P. 50(a). The district court granted
the motion after oral argument.

We review de novo a district court's entry of judgment as a matter
of law. Gairola v. Virginia Dep't of Gen. Servs. , 753 F.2d 1281, 1285
(4th Cir. 1985); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
251 (1986). We must decide, without weighing the credibility of wit-
nesses, whether there can be but one conclusion as to the verdict that

                     5
reasonable jurors could have reached. Gairola , 753 F.2d at 1285.
Accordingly, the question is not whether there is no evidence, but
whether there is sufficient evidence upon which a jury can properly
proceed to reach a verdict, although a mere scintilla of evidence is not
enough to defeat a motion for directed verdict. Ralston Purina Co. v.
Edmunds, 241 F.2d 164, 167 (4th Cir.), cert. denied, 353 U.S. 974
(1957).

Hsu alleged that the Defendants took action against her because she
participated in activities protected by Title VII. Her claim is subject
to the burdens of proof set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). To prevail on her reprisal claim, Hsu
must establish a prima facie case by presenting proof giving rise to
the inference that it is more likely than not that the adverse action
complained of is based upon illegal criteria. Furnco Constr. Corp. v.
Waters, 438 U.S. 567, 577 (1978); McNairn v. Sullivan, 929 F.2d
974, 980 (4th Cir. 1991). Thus, to establish a prima facie case of retal-
iation, Hsu must show that: (1) she engaged in protected activity; (2)
the Army took an adverse employment action against her; and (3) a
causal connection existed between the protected activity and the
adverse action. Id.

Once a plaintiff establishes a prima facie case of discrimination,
the burden then shifts to the defendant to articulate some legitimate,
non-discriminatory reason for the employee's rejection. Texas Dep't
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the
defendant meets its burden of production, the plaintiff must then
prove by a preponderance of the evidence that the employer's articu-
lated reasons are a pretext for discrimination. Burdine, 450 U.S. at
253. And the plaintiff must show by a preponderance of the evidence
that "but for" the protected activity, the adverse action would not have
occurred. Dwyer v. Smith, 867 F.2d 184, 191 (4th Cir. 1989).

The district court correctly determined that Hsu failed to provide
evidence to establish a prima facie case of discrimination. The Defen-
dant did not dispute the following facts: (1) Hsu engaged in protected
activity by pursuing a sexual harassment complaint against Holt; (2)
Hsu was placed on administrative leave; (3) Hsu's access to classified
information was suspended; and (4) Hsu was referred to a psychiatrist
for evaluation. However, the Defendant offered unrebutted evidence

                    6
that those actions were taken based on the psychiatrist's recommenda-
tion to remove Hsu from the work place and have her examined for
fitness for duty. Fillian presented uncontroverted evidence that he
acted based upon his concern that Hsu presented a possible security
risk. Those concerns about Hsu's odd behavior arose before Hsu
began to complain of alleged sexual harassment. Thus, Hsu failed to
establish a causal connection between her filing of the EEO complaint
and Fillian's decision regarding her work status.

Moreover, even assuming Hsu succeeded in establishing a prima
facie case of discrimination, the district court properly entered judg-
ment as a matter of law for the Defendant for other reasons. The
Defendant proffered a legitimate, non-discriminatory reason for the
actions taken against Hsu. The evidence established that Fillian
placed Hsu on paid administrative leave and suspended her access to
classified information based upon the recommendations of Dr. Pra-
sanna, Chief Psychiatrist at the Fort Belvoir Mental Health facility,
and the legal office at Fort Belvoir. Thus, Fillian did not base his rec-
ommendation on the fact that Hsu had engaged in protected activity.
In fact, Fillian encouraged Hsu to pursue her complaint through the
EEO process.

Second, Hsu's assertion that Army representatives suspended her
security clearance because she declined a settlement offer is simply
without support. Fillian's investigation and findings relating to the
sexual harassment claim were separated by several months from the
time that Hsu's access to classified information was suspended. More-
over, Fillian denied taking punitive disciplinary action against Hsu
based upon her harassment complaints, and Hsu presented no evi-
dence to the contrary. Fillian testified that he took no disciplinary or
punitive action against Hsu at that time. Fillian's recommendations in
May 1993 to suspend Hsu's security clearance resulted from Dr. Pra-
sanna's recommendation. The unrefuted evidence shows that retalia-
tion played no part in the agency's decision to suspend Hsu's access
to classified information and to place her on paid administrative
leave.

Finally, Hsu failed to show that the Defendant's proffered reasons
for the adverse action were a pretext for intentional and unlawful dis-
crimination. Burdine, 450 U.S. at 256. Hsu must state specific facts

                     7
or present some objective evidence that would allow a jury to find
that the articulated reason for the action is a sham intended to cover
up unlawful discrimination. See Goldberg v. B. Green & Co., 836
F.2d 845, 848 (4th Cir. 1988). Hsu failed to present any objective evi-
dence from which one could reasonably conclude that the articulated
bases for the agency's actions are pretext. The unrebutted evidence
showed that the agency referred Hsu for a fitness-for-duty evaluation
and suspended her access to classified information based upon legiti-
mate security concerns. Hsu presented no evidence to refute the Sec-
retary's articulated reason for his actions.

The district court correctly found that there were no controverted
issues of fact upon which reasonable minds could differ. Accordingly,
we affirm the district court's order entering judgment as a matter of
law in favor of the Appellees. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.

AFFIRMED

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