UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JERRY G. MAYO,
Plaintiff-Appellant,

v.

KIWEST CORPORATION; AMGULF
                                                                       No. 95-2638
CORPORATION,
Defendants-Appellees.

EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Amicus Curiae.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, District Judge.
(CA-95-832-A)

Argued: June 5, 1996

Decided: August 15, 1996

Before ERVIN, HAMILTON, and LUTTIG, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Mary Ann Kelly, FITE, O'BRIEN & BYRUM, LTD.,
McLean, Virginia, for Appellant. John Clifton Rand, Alexandria, Vir-
ginia, for Appellees.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Plaintiff-Appellant Jerry Mayo (Mayo) appeals the district court's
Federal Rule of Civil Procedure 12(b)(6) dismissal of his claims
against Defendants-Appellees, Kiwest Corporation and Amgulf Cor-
poration, alleging sexual harassment that created a hostile workplace
environment, discriminatory discharge, and retaliation, all in violation
of Title VII of the Civil Rights Act of 1964, see 42 U.S.C. §§ 2000e
to 2000e-17. For the reasons that follow, we affirm.

I.

Because this appeal stems from a dismissal under Federal Rule of
Civil Procedure 12(b)(6), we recite the facts as alleged in Mayo's
complaint and must take them as true. See Martin Marietta v. Intern.
Tel. Satellite, 991 F.2d 94, 97 (4th Cir. 1992).

In October 1993, two related Virginia companies in the business of
general contracting, construction management, and real estate man-
agement, Kiwest Corporation and Amgulf Corporation (collectively
Kiwest), hired Mayo to perform construction remodeling and mainte-
nance work. Richard Flanagan supervised Mayo at Kiwest. After
Mayo had worked several months for Kiwest, he was asked to sign
an employment agreement. After Mayo voiced concerns regarding the
legality and fairness of the agreement, Flanagan fired him on behalf
of Kiwest.

Kiwest rehired Mayo in April 1994, after he complained to Kiwest
about the circumstances of his firing. Upon rehiring Mayo, Kiwest
promoted him to a supervisory position. Flanagan continued to serve
as Mayo's immediate supervisor.

Soon after Mayo returned to work at Kiwest, Flanagan mounted a
campaign of intimidation and harassment against Mayo that included

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verbal and physical conduct. With respect to the verbal conduct, Flan-
agan repeatedly made sexually explicit and vulgar comments to
Mayo. For instance, Flanagan told Mayo "you smell good enough to
fuck," "blow me," "suck me," and"lick my sack." (J.A. 9). Further-
more, Flanagan repeatedly spoke of the idea of having oral sex with
Mayo. Flanagan also teased Mayo by telling him and subordinate
employees that Mayo was a fag and a queer. With respect to the phys-
ical conduct, Flanagan grabbed and fondled Mayo's buttocks and gen-
itals in a sexual manner on several occasions. On still other occasions,
Flanagan surprised Mayo from behind by deliberately poking his anal
area with a wooden dowel. On yet other occasions, Flanagan kissed
Mayo on the cheek. Flanagan often engaged in this verbal and physi-
cal conduct in the presence of other Kiwest employees.

Mayo repeatedly asked Flanagan to stop his intimidating and
harassing behavior, including asking Flanagan to stop telling other
employees that he was homosexual. Often, Flanagan laughed in
response and several times Flanagan threatened that if Mayo did not
stop complaining he would be fired.

Despite Mayo's repeated requests that Flanagan stop suggesting to
other Kiwest employees that he was homosexual, Flanagan continued
to do so and widely published a staged photo of Mayo wearing only
a pair of black underwear that Flanagan had falsely created by super-
imposing a photo of Mayo's head onto the body of another man.

Mayo considered Flanagan's conduct unwelcome, highly offensive,
and abusive. Consequently, Mayo complained about Flanagan's con-
duct to Kiwest's President and Director, James Rand. In response,
Rand placed Mayo on administrative leave and promised Mayo that
he would investigate the allegations.

On or about February 19, 1995, Mayo received a letter from
Kiwest's in-house counsel and corporate secretary, Stanley Wagner.
In the letter, Wagner requested that Mayo meet with him. Wagner
also informed Mayo in the letter that he would investigate Mayo's
allegations. Mayo and Wagner met the next week. Mayo provided
Wagner with additional information regarding his allegations against
Flanagan.

                    3
Approximately one month later, Mayo received a letter from Wag-
ner stating that his investigation revealed Mayo's allegations against
Flanagan to be without merit, that Mayo was guilty of wrongdoing,
and that Mayo was fired. According to Mayo, Kiwest falsely accused
him of wrongdoing in this letter.

Following Mayo's firing, Kiwest challenged Mayo's application
for unemployment compensation benefits based on its same accusa-
tions of wrongdoing. Kiwest also ended a month to month landlord/
tenant relationship with Mayo in which Mayo rented an apartment
from Kiwest. This rental situation had nothing to do with Kiwest and
Mayo's employer/employee relationship.

At all times relevant to this case, Mayo performed his work for
Kiwest in a highly competent and professional manner.

After receiving a right to sue letter from the Equal Employment
Opportunity Commission (EEOC), Mayo filed suit against Kiwest in
federal district court for the Eastern District of Virginia on June 20,
1995. His complaint alleged three counts under Title VII, sexual
harassment that created a hostile workplace environment, discrimina-
tory discharge on account of sex, and retaliatory discharge and other
acts of retaliation in response to complaints of sex discrimination to
Kiwest management; and three counts under Virginia law, intentional
infliction of emotional distress, wrongful termination, and assault and
battery.

Ten days after Mayo filed his complaint, Kiwest moved to dismiss
all six counts of the complaint under Federal Rule of Civil Procedure
12(b)(6). Kiwest argued that Mayo's claims of sexual harassment and
discriminatory discharge on account of sex should be dismissed
because Title VII does not provide a cause of action for same-sex sex
discrimination. Kiwest also argued that Mayo's retaliation claim
should be dismissed because Mayo did not have a reasonable belief
that he was being discriminated against. Finally, Kiwest argued that
if the district court dismissed these three federal claims, then the state
claims should be dismissed for lack of subject matter jurisdiction.
Kiwest answered the complaint on August 8, 1995, and filed a coun-
terclaim alleging defamation and slander.

                     4
On August 8, 1995, the district court dismissed Mayo's sexual
harassment and discriminatory discharge claims with prejudice and
Mayo's three state claims without prejudice. In dismissing Mayo's
sexual harassment and discriminatory discharge claims, the district
court concluded that Title VII does not provide a remedy for same-
sex sex discrimination. On August 28, 1995, the district court filed an
amended order also dismissing Mayo's retaliation claim with preju-
dice. In dismissing Mayo's retaliation claim, the district court con-
cluded that, based on existing case law in the Fourth Circuit at the
time Mayo filed his charge of discrimination, Mayo's belief that he
was being discriminated against was not reasonable and could not
support an independent claim of retaliation.

Mayo filed a notice of appeal on September 5, 1995, stating that
he was appealing the August 8 order and August 28 amended order.
On September 11, 1995, the district court filed an order dismissing
Kiwest's joint counterclaim without prejudice. Although Mayo did
not file a new notice of appeal, we have previously determined that
his notice of appeal was timely.1

II.

Mayo first challenges the dismissal of his claim alleging same-sex
sexual harassment. According to Mayo, the district court wrongly
concluded that a claim alleging same-sex sexual harassment is not
actionable under Title VII. We do not reach the issue of whether
same-sex sexual harassment is actionable under Title VII because our
recent decision in McWilliams v. Fairfax County Bd. of Supervisors,
72 F.3d 1191 (4th Cir. 1996), petition for cert. filed, 64 U.S.L.W.
3839 (U.S. June 10, 1996) (No. 95-1983), compels our affirmance of
the district court's dismissal on the ground that both Mayo and Flana-
gan were indisputably males, and no claim is made that either was
homosexual or bisexual. Id. at 1195 & n.5.
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1 Citing Federal Rule of Civil Procedure 54(b), Kiwest moved to dis-
miss Mayo's appeal on the ground that Mayo did not appeal from a final
order, but only two interlocutory orders and that Mayo's notice of appeal
did not meet the jurisdictional requirements of Federal Rule of Appellate
Procedure 3(a) and 4(a). We denied this motion by order dated January
5, 1996.

                    5
In McWilliams, the Fairfax County Equipment Management Trans-
portation Agency employed Mark McWilliams (McWilliams) as an
automotive mechanic. Id. at 1193. After approximately two years had
passed since his hiring, McWilliams' co-workers, collectively known
as the "lube boys," tormented McWilliams with a variety of offensive
verbal and physical conduct of a sexual nature. Id.

Much of the conduct that McWilliams suffered at the hands of the
lube boys was akin to and at least as deplorable as that suffered by
Mayo. The verbal harassment that McWilliams suffered included the
lube boys teasing him by asking about his sexual activities and taunt-
ing him with remarks such as, "`The only woman you could get is one
who is deaf, dumb, and blind.'" Id. On one occasion a lube boy
flicked his tongue at McWilliams and said "`I love you, I love you.'"
Id. On one occasion, a lube boy offered McWilliams money for sex.
Id. The physical harassment included one lube boy placing a broom
stick to McWilliams' anus while another exposed his genitals to
McWilliams and one lube boy entering a bus on which McWilliams
was working and fondling him. Id. On at least three occasions, some
of the lube boys tied McWilliams' hands together, blindfolded him,
and forced him to his knees. On one of these occasions, one of the
lube boys placed his finger in McWilliams' mouth to simulate oral
sex. Id. On yet another occasion, a lube boy who sometimes took on
supervisory responsibility placed a condom in McWilliams' food. Id.

Subsequently, McWilliams sued Fairfax County under Title VII for
sexual harassment that created a hostile working environment. Id. at
1194. Following discovery, Fairfax County moved for summary judg-
ment. The district court granted the motion on the ground that neither
Fairfax County nor any of the supervisors had actual or constructive
knowledge of the lube boys' conduct on which the sexual harassment
claim was based. Id. Contending the district court erred in dismissing
his Title VII claim of sexual harassment against Fairfax County,
McWilliams appealed. Id.

On appeal, we noted that Fairfax County raised a serious question
as to whether McWilliams had proffered sufficient admissible evi-
dence to support the necessary finding that any of his supervisors,
hence Fairfax County, were on actual or constructive notice of co-
worker misconduct sufficient to have created a hostile work place

                    6
environment. Nevertheless, we did not address that question. Instead,
we held that McWilliams' hostile environment claim failed for the
"more fundamental reason that such a claim does not lie where both
the alleged harassers and the victim are heterosexuals of the same
sex." Id. at 1195. Critically, we noted that both McWilliams and all
of his alleged harassers were indisputably males, and McWilliams
made no claim that any was homosexual.2 Id.

Here, Mayo's claim that Flanagan sexually harassed him suffers
from the same fatal infirmity. Both Mayo and Flanagan were indispu-
tably males, and Mayo makes no claim that either he or Flanagan was
homosexual or bisexual. Specifically, paragraph thirty-three of
Mayo's complaint states that Mayo is not homosexual and page seven
of his brief to this court confirms that he is not alleging that Flanagan
is homosexual. See Mayo's Br. at 7 ("Mayo makes no allegation as
to whether Flanagan is homosexual.").

Mayo's attempt to distinguish McWilliams on its facts is unavail-
ing. The verbal and physical conduct of the lube boys in McWilliams
is squarely on par with that of Flanagan. With respect to verbal con-
duct, in both cases, the harassers teased the victim about topics of a
sexual nature and made verbal comments inviting the victim to partic-
ipate in sex. With respect to physical conduct, in both cases, the
harassers poked the victim's anal area with a long wooden pole and
fondled the victim.

In sum, under the authority of McWilliams, we affirm the district
court's Rule 12(b)(6) dismissal of Mayo's sexual harassment claim
because both Mayo and Flanagan were indisputably males and Mayo
makes no claim that either was homosexual or bisexual.3
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2 While we left open the question of whether a claim of same-sex sex-
ual harassment is actionable under Title VII, we explicitly stated in dicta
that were Title VII to be interpreted to protect against same-sex sexual
harassment, "the fact of homosexuality (to include bisexuality) should be
considered an element of the claim to be alleged and proved." Id. at 1195
n.5.
3 We also affirm the district court's dismissal of Mayo's discriminatory
discharge claim because "it appears that [Mayo] would not be entitled to
relief under any facts which could be proved in support of [his] claim."
See Schatz v. Rosenberg, 943 F.2d 485, 489 (4th Cir. 1991), cert. denied,
503 U.S. 936 (1992).

                     7
III.

Mayo also challenges the dismissal of his retaliation claim. Mayo's
complaint alleged that Kiwest retaliated against him for complaining
about Flanagan's offensive behavior to Kiwest's upper management
by (1) firing him, (2) challenging his right to receive unemployment
benefits, and (3) evicting him from his apartment. According to
Mayo, the district court erroneously dismissed his retaliation claim
because it incorrectly determined that he did not have a reasonable
belief that he was being discriminated against in violation of Title
VII. We disagree, and, therefore, affirm the district court's dismissal
of this claim.

Title VII prohibits an employer from discriminating against an
employee in retaliation for that employee's opposition to, or com-
plaint about, an employment practice made unlawful under Title VII.
See 42 U.S.C. § 2000e-3(a). An employee need not have instituted
formal proceedings under Title VII in order subsequently to invoke
the protection of Title VII's retaliation provision; informal complaints
to the employer will suffice. See Armstrong v. Index Journal Co., 647
F.2d 441, 448 (4th Cir. 1981). Neither does the employee's underly-
ing discrimination claim have to be meritorious in order to invoke the
protection of Title VII's retaliation provision. See Ross v. Communi-
cations Satellite Corp., 759 F.2d 355, 357 n.1 (4th Cir. 1985). An
employee does, however, need to have an objectively reasonable
belief that he was the victim of discrimination made unlawful under
Title VII. See, e.g., Gifford v. Atchison, Topeka and Santa Fe Ry. Co.,
685 F.2d 1149, 1156-57 (9th Cir. 1982); Sisco v. J.S. Alberici Constr.
Co., 655 F.2d 146, 150 (8th Cir. 1981), cert. denied, 455 U.S. 976
(1982); Kralowec v. Prince George's County, 503 F. Supp. 985, 1008
(D.Md. 1980), aff'd, 679 F.2d 883 (4th Cir.), cert. denied, 459 U.S.
872 (1982). The most obvious measure of the objective reasonable-
ness of a plaintiff's belief that the conduct of which he complained
violated Title VII is the state of the case law at the time the plaintiff
engaged in the protected activity.

The state of the case law at the time that Mayo complained about
Flanagan's offensive conduct to Kiwest's upper management reveals
that Mayo's belief was objectively unreasonable. At that time (Janu-
ary 1995 to March 1995), no court had held a hostile-environment

                    8
claim actionable where both the alleged harasser and the alleged vic-
tim were of the same sex, no claim was made that either the alleged
harasser or the alleged victim was homosexual or bisexual, and no
claim was made that the alleged harasser treated men in the work-
place differently than women. The lack of conflicting authority sup-
ports a finding that Mayo was not reasonable in believing that his
claim was actionable.

In support of his position that his belief was reasonable, Mayo
relies on two pronouncements by the EEOC, the administrative
agency charged by Congress with enforcing Title VII. See 42 U.S.C.
§ 2000e-4. First, Mayo relies on a provision in the EEOC's compli-
ance manual providing that "[t]he victim does not have to be of the
opposite sex from the harasser" in order to state a viable claim of sex-
ual harassment. EEOC Compl. Man. (CHH) § 615.2(b)(3). Second,
Mayo relies on an EEOC administrative decision holding that an alle-
gation that a male supervisor "made unwanted sexual advances"
toward a male subordinate states "a violation of Title VII" if substan-
tiated. EEOC Decision No. 81-16, Employ. Prac. Dec. (CHH) (1981)
¶ 6756 at 4796-97. Mayo stresses that because courts must give some
deference to the EEOC's interpretative guidelines and adjudications,
see Ritter v. Cecil City Office of Hous. & Community Dev., 33 F.3d
323, 328 (4th Cir. 1994), then his reliance upon these two pronounce-
ments by the EEOC made his belief reasonable. We disagree.

The deference that Mayo stresses should be given to the EEOC's
interpretive guidelines and adjudications "applies only to the extent
the agency's rules are not contrary to the statute .. . , and that ques-
tion is one of law for the courts to determine de novo." Id. In other
words, we give no deference to an agency interpretation that is at
odds with the statute. See Pub. Employees Retirement Sys. v. Betts,
492 U.S. 158, 171 (1989).

To the extent these two EEOC pronouncements can be read to
interpret Title VII as providing a cause of action for the victim of the
kind of heterosexual-male-on-heterosexual-male conduct alleged by
Mayo, we conclude such an interpretation is irrational because it is
completely at odds with the plain language of Title VII. The critical
causation language of Title VII plainly provides actionability only if
the harasser took the complained of actions "because of such individ-

                     9
ual's . . . sex . . . ." 42 U.S.C. § 2000e-2(a)(1). Common sense dictates
that if the victim was harassed for any other reason, for example,
because of the harasser's meanness of spirit, or because the victim
refused to comply with a company policy, the conduct is not action-
able. Indeed, in McWilliams we recognized the irrational nature of a
contrary interpretation: "As a purely semantic matter, we do not
believe that in common understanding the kind of shameful
heterosexual-male-on-heterosexual-male conduct alleged here (nor
comparable female-on-female conduct) is considered to be "because
of the [target's] `sex'." McWilliams , 72 F.2d at 1195-96. Owing no
deference to the EEOC's irrational interpretation of Title VII's critical
causation language, we reject Mayo's reliance on such an interpreta-
tion as unreasonable.

In sum, we hold that the district court properly dismissed Mayo's
retaliation claim because Mayo's belief that Flanagan's offensive con-
duct toward him violated Title VII was unreasonable.

IV.

In conclusion, we hold that the district court properly dismissed
Mayo's sexual harassment claim, discriminatory discharge claim, and
retaliation claim pursuant to Federal Rule of Civil Procedure 12(b)(6).
Accordingly, we affirm.4

AFFIRMED
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4 We also affirm the district court's dismissal without prejudice of his
state law claims.

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