UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ELOIS D. HAIRSTON,
Plaintiff-Appellant,

v.

MULTI-CHANNEL TV CABLE
COMPANY,                                                            No. 95-2363
Defendant-Appellee,

and

ADELPHIA CABLE COMMUNICATIONS,
Defendant.

Appeal from the United States District Court
for the Western District of Virginia, at Danville.
Jackson L. Kiser, Chief District Judge.
(CA-94-74-D)

Submitted: December 19, 1995

Decided: March 19, 1996

Before HALL, NIEMEYER, and LUTTIG, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Robert A. Williams, WILLIAMS, LUCK & WILLIAMS, Martins-
ville, Virginia, for Appellant. John D. McKay, David C. Wagoner,
BARRICK & MCKAY, P.L.C., Charlottesville, Virginia; Rhona S.
Alter, Assistant General Counsel, ADELPHIA CABLE COMMUNI-
CATIONS, Coudersport, Pennsylvania, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Appellant Elois Hairston appeals from the district court's order
granting Appellee Multi-Channel TV Cable Co.'s ("the Company")
motion to dismiss her action. Finding no reversible error, we affirm.

Hairston filed a complaint in state court alleging that a supervisor
racially harassed her while she was employed by the Company. The
complaint alleged that the harassment violated Virginia public policy.
The Company removed the suit to federal court based upon diversity
of citizenship. 28 U.S.C. § 1332 (1988). Hairston is a resident of Vir-
ginia and the Company is an Ohio corporation with its principal place
of business in Pennsylvania.

The Company moved to dismiss under Fed. R. Civ. P. 12(b)(4),
(5), and (6). Alternatively, the Company moved for summary judg-
ment. Following argument on the motions, the district court granted
the Company's motion to dismiss for failure to state a claim upon
which relief may be granted. Hairston timely appealed.

Hairston was employed by the Company as a customer service rep-
resentative from October 25, 1985, until November 23, 1993. In her
motion for judgment, Hairston alleged that for more than one year
prior to her termination, she was harassed by Betty Wald, a Company
supervisor. Hairston alleged that Wald harassed her on account of her
race, which caused Hairston's blood pressure to rise and caused her
physician to advise her to terminate her employment. Hairston alleged
that she contacted managers at the Company before her termination

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and described her problem with Wald and her health problems.
Finally, Hairston alleged that the Company did nothing to stop the
harassment.

After the Company removed Hairston's case to federal court, the
district court entered a standard pretrial order. The order stated that
briefs on opposition to motions must be filed within fourteen days of
the date of service of the movant's brief. The order further stated that
except for good cause shown, if an opposition brief was not filed, the
motion would be deemed well-taken. Hairston's counsel admitted that
he received a copy of the pretrial order on January 9, 1995. The Com-
pany served its motion to dismiss on January 24, 1995; consequently,
the pretrial order required Hairston to file a brief in opposition no
later than February 10, 1995. When Hairston failed to timely file a
brief in opposition, the Company filed a motion for relief based on
Hairston's failure to comply with the pretrial order on February 21,
1995. The Company noticed its motion for hearing on March 3, 1995,
the same date as that scheduled for a hearing on its previously filed
motion to dismiss.

On March 2, 1995, the day before the hearing, Hairston's counsel
faxed to the Company a brief in opposition to the motion to dismiss.
Hairston's counsel filed the brief in opposition to the motion to dis-
miss with the court on the morning of the hearing. Hairston never
filed a brief in opposition to the Company's motion for relief.

At the hearing on the Company's two motions, counsel for the
Company asserted that it had been prejudiced by Hairston's failure to
timely provide a brief in opposition because it was impossible to dis-
cern from the original complaint which theory Hairston relied upon
in her claim for relief. The district court noted that its preparation for
the hearing had been hampered as well. Hairston's counsel attributed
his failure to comply with the pretrial order to his inexperience in the
federal court system.

I. Dismissal Pursuant to Fed. R. Civ. P. 12(b)(6)

We review de novo a district court's dismissal pursuant to Fed. R.
Civ. P. 12(b)(6). Schatz v. Rosenberg, 943 F.2d 485, 489 (4th Cir.
1991), cert. denied, 503 U.S. 936 (1992).

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In her motion for judgment, Hairston offered only vague allega-
tions of "harassment" and "disparate treatment" based upon her race.
Those conclusory allegations fail to state a claim. See Simpson v.
Welch, 900 F.2d 33, 35 (4th Cir.1990); United Black Firefighters v.
Hirst, 604 F.2d 844 (4th Cir. 1979). Hairston's failure to identify even
one specific act of harassment or disparate treatment brought her case
squarely within Rule 12(b)(6).

Hairston's brief asserts that she attempted to allege a constructive
discharge claim in her state court complaint. The record reveals, how-
ever, that Hairston failed to plead the essential elements of such a
claim. Constructive discharge occurs only when an employer deliber-
ately makes an employee's work conditions intolerable in an effort to
induce that employee to quit. "Deliberateness exists only if the actions
complained of `were intended by the employer as an effort to force
the employee to quit.'" Bristow v. Daily Press, Inc., 770 F.2d 1251,
1255 (4th Cir. 1985), cert. denied, 475 U.S. 1082 (1986) (quoting
EEOC v. Federal Reserve Bank of Richmond, 698 F.2d 633, 672 (4th
Cir. 1983), rev'd on other grounds, 467 U.S. 867 (1984)). To estab-
lish constructive discharge, a plaintiff must allege and prove both
deliberate action on the part of the employer and intolerable working
conditions. Martin v. Cavalier Hotel Corp., 48 F.3d 1343, 1354 (4th
Cir. 1995).

Because Hairston was required to allege all facts necessary to
establish a cause of action, Chisolm v. Charlie Falk Auto
Wholesalers, 851 F. Supp. 739 (E.D. Va. 1994), the district court
properly dismissed her action because her complaint did not give the
Company notice of a constructive discharge claim. Moreover, in her
letter of resignation, Hairston notified the Company that her reasons
for quitting were her distrust of a supervisor, general dissatisfaction
with her job, and alleged hypertension. Hairston's resignation letter
mentioned neither intolerable conditions nor racially-based harass-
ment.

Finally, Hairston asserts that her constructive discharge claim is
included in the narrow exception to Virginia's employment-at-will
doctrine identified in Lockhart v. Commonwealth Educ. Sys. Corp.,
439 S.E.2d 328 (Va. 1994). In Lockhart, an employee was demoted
and eventually fired for refusing to participate in her employer's

                    4
racially discriminatory practices. The Virginia Supreme Court recog-
nized a narrow non-statutory, public-policy based exception to the
employment-at-will doctrine in circumstances where employees are
terminated because of discrimination based upon gender or race. Id.
at 332. However, no Virginia court has expanded the Lockhart excep-
tion to a claim of constructive discharge. Thus, the district court prop-
erly dismissed Hairston's action for failure to state a claim. See
Spencer v. General Elec. Co., 894 F.2d 651, 657 (4th Cir. 1990) (fed-
eral courts should use caution in extending state law to a point beyond
which a state's highest court has not taken it).

II. Dismissal for Failure to Comply With Court Order

A district court may dismiss a complaint based upon a plaintiff's
failure to comply with court orders. Simpson v. Welch, 900 F.2d at 35.
Hairston's counsel conceded that he received a copy of the district
court's pretrial order. Hairston offered no reason to explain how her
counsel's unfamiliarity with the federal court system could constitute
"good cause" for not enforcing the clear text of the pretrial order.
Hairston also offered no explanation how the district court's decision
to enforce the provisions of its pretrial order constitutes an abuse of
discretion.

Moreover, Hairston failed to act even after receiving notice of her
default. On February 17, 1995, the Company served Hairston with its
motion for relief based upon her failure to comply with the pretrial
order. Hairston did not file her brief in opposition until March 3,
1995. Even then, Hairston did not address her violation of the pretrial
order. Based on these facts, we find that the district court did not
abuse its discretion in dismissing her action for failure to comply with
its order.

Accordingly, we affirm the order of the district court. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.

AFFIRMED

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