                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 07-1723


DANA W. CUMBIE,

                  Plaintiff – Appellant,

             v.

GENERAL SHALE BRICK, INCORPORATED,

                  Defendant – Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:06-cv-00940-JCC)


Submitted:    November 13, 2008             Decided:   December 8, 2008


Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Richard A. Oliver, OLIVER & OLIVER, P.C., Reston, Virginia, for
Appellant.   Frederick L. Warren, FORD & HARRISON LLP, Atlanta,
Georgia; Randy C. Sparks, Jr., FORD & HARRISON LLP, Washington,
D.C., for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

               Dana W. Cumbie filed a complaint in federal district

court alleging his former employer, General Shale Brick, Inc.

(“GSB”), retaliated against him in violation of Title VII of the

Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e to

2000e-17 (2000) (“Title VII”).                    GSB filed a Fed. R. Civ. P.

56 motion for summary judgment.                  After conducting a hearing, the

district       court     granted    GSB’s     Rule    56    motion    by    memorandum

opinion and order.           Cumbie filed a timely notice of appeal.                For

the    reasons      below,    we   vacate    the     district    court’s    order   and

remand the case for further proceedings.

               This court reviews de novo a district court’s order

granting summary judgment and views the facts in the light most

favorable      to    the   nonmoving    party.         Henson    v.   Liggett   Group,

Inc., 61 F.3d 270, 275 (4th Cir. 1995).                         Summary judgment is

appropriate when no genuine issue of material fact exists and

the moving party is entitled to judgment as a matter of law.

See Fed. R. Civ. P. 56(c); Dawkins v. Witt, 318 F.3d 606, 610

(4th    Cir.    2003).       Summary   judgment      will   be    granted    unless    a

reasonable jury could return a verdict for the nonmoving party

on the evidence presented.                  Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 247-48 (1986).

               Here, the district court found that Cumbie failed to

present    a     prima     facie    case     of    retaliation.        In   order     to

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establish a prima facie case of retaliation, the plaintiff must

prove    three    elements:    first,   that     the   plaintiff    engaged   in

protected activity; second, that an adverse employment action

was taken against the plaintiff; and third, that there was a

causal    link    between    the   protected     activity    and   the   adverse

employment action.          Mackey v. Shalala, 360 F.3d 463, 469 (4th

Cir. 2004).      The district court found that Cumbie’s filing of an

intake complaint questionnaire with the Prince William County

Human    Rights    Commission       (“PWCHRC”)    would     have   constituted

protected activity had Cumbie possessed a reasonable basis upon

which to believe GSB’s actions were unlawful.                Determining that

Cumbie’s   allegations       of    unlawful   behavior *    were   unreasonable


    *
       Briefly summarized, Cumbie’s claim originated with the
discovery of several drawings in his workplace that he found
offensive.    He brought the drawings to the attention of his
supervisor, whose investigation did not reveal the source of the
drawings. Three days after informing his supervisor that he had
contacted PWCHRC (and filing the intake questionnaire), Cumbie
was suspended for failing to report a worker’s compensation
claim in a timely manner.     Cumbie was suspended for a second
worker’s compensation infraction approximately a month later and
claimed he suffered other adverse employment actions, all of
which he alleged were imposed in retaliation for contacting
PWCHRC concerning the drawings. In its memorandum opinion, the
district court acknowledged the drawings were “boorish and
juvenile” but, citing Hartsell v. Duplex Prods., Inc., 123 F.3d
766, 773 (4th Cir. 1997), were insufficient to lead to the
reasonable   belief   that  they   constituted a   hostile  work
environment, as Cumbie alleged in his intake questionnaire.
(J.A. 26).    Given the necessity of remanding this case to the
district court for further proceedings, we express no opinion on
the court’s finding concerning this issue.



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under Title VII, however, the district court found that Cumbie

failed     to    demonstrate           he    engaged       in      protected       activity         and

therefore failed to establish a prima facie case.

                We    distinguish           protected         activity      as     two       distinct

categories:               opposition        and        participation.              See       Laughlin

v. Metro.       Wash.       Airports        Auth.,      149    F.3d    253,       259    (4th       Cir.

1998).           Opposition        activity            includes       “utilizing             informal

grievance procedures as well as staging informal protests and

voicing     one’s         opinions      in     order      to       bring    attention          to    an

employer’s           discriminatory          activities.”             Id.     at       259    (citing

Armstrong v. Index Journal Co., 647 F.2d 441, 448 (4th Cir.

1981)).          In       determining         whether         an     employee          engages       in

legitimate opposition activity, 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.”                          Id. (internal citation and

quotation omitted).

                To     proceed     under          the     participation            category,         an

individual must make a charge, testify, assist, or participate

in any manner in an investigation, proceeding, or hearing under

Title VII.            Id.       Importantly, when an individual engages in

activities           constituting            participation,            such        activity          is

protected        conduct        regardless         of      whether         that        activity       is

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reasonable.        See Glover v. S.C. Law Enforcement Div., 170 F.3d

411, 413-15 (4th Cir. 1999).

             In its memorandum opinion, the district court did not

expressly        find     whether        Cumbie   engaged         in       opposition    or

participation protected activity.                 Because our established case

law   imposes       the      aforementioned       reasonableness             standard    on

opposition        protected       activity,       but      not        on    participation

protected activity, the district court’s materials before us are

insufficient to evaluate the propriety of the court’s finding

that Cumbie failed to satisfy the protected activity element of

a prima facie case.           Accordingly, we vacate the district court’s

summary judgment order and remand the case to the district court

for further proceedings in light of this opinion and the Supreme

Court’s   recent        opinion     in    Fed.    Express     Corp.        v.    Holowecki,

128 S. Ct. 1147 (2008).              The district court did not have the

benefit     of    the     Holowecki       opinion     when       it    granted      summary

judgment for GSB.            See id. at 1157-58 (holding, in the context

of an Age Discrimination in Employment Act claim, that an intake

questionnaire filing constitutes a charge under Equal Employment

Opportunity       Commission        rulemaking,       if     the       filing      document

reasonably       can    be    construed      to     request      agency         action   and

appropriate relief on the employee’s behalf).




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            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.

                                                      VACATED AND REMANDED




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