                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 03-2103



MICHAEL D. SHIELDS,

                                                Plaintiff - Appellant,

           and


RVA PENDLETON,

                                                             Plaintiff,

           versus



FEDERAL   EXPRESS     CORPORATION;   PATRICK    J.
QUIRKE,

                                               Defendants - Appellees.



Appeal from the United States District Court for the District of
Maryland, at Baltimore. Marvin J. Garbis, Senior District Judge.
(CA-02-1783-MJG)


Argued:   October 28, 2004                  Decided:   January 19, 2005


Before WILKINS, Chief Judge, and MICHAEL and TRAXLER, Circuit
Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Richard Lee Swick, SWICK & SHAPIRO, P.C., Washington, D.C.,
for Appellant. Michael Edwin Gabel, FEDERAL EXPRESS CORPORATION,
Memphis, Tennessee, for Appellees. ON BRIEF: Eric Hemmendinger,
SHAWE & ROSENTHAL, L.L.P., Baltimore, Maryland, for Appellees.


Unpublished opinions are not binding precedent in this circuit.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




                               2
PER CURIAM:


     Michael D. Shields appeals the order of the district court

granting summary judgment to Federal Express Corporation (“FedEx”)

on his Title VII claims alleging that he was subjected to disparate

treatment based on race, racially hostile working conditions, and

retaliation     for    his    opposition     to    FedEx’s     illegal     employment

practices. We agree with the district court and affirm its ruling.



                                        I.

     Shields worked for FedEx from 1981 until his termination in

February 2001.        Shields, an African American, apparently received

high performance evaluations during most of his tenure at FedEx.

By 1989, Shields had obtained the level of manager, and, by January

2000, he had been promoted to the position of Senior Manager in

charge   of    the    Herndon,   Virginia      station       (known   as   the    “BCB”

station).

     In July 2000, Patrick Quirke became the Managing Director of

FedEx’s Capital District, which included the BCB station.                        As the

Managing      Director,      Quirke   ranked      in   the    corporate     hierarchy

immediately above Shields and the other Senior Managers in the

Capital District.         Shields therefore reported to Quirke, who is

Caucasian, on issues related to the performance of the BCB station.

     Shortly after Quirke assumed his new position, he concluded

that the BCB station was not meeting the standard, company-wide

                                         3
performance objectives in a number of areas. FedEx had established

standards for evaluating the overall performance of Senior Managers

and other employees through its Functional Operating Plan (“FOP”),

which established standards such as the number of hours employees

were to work during a given “phase of the station’s operation.”

J.A. 548.   The FOP standards were tailored somewhat to account for

the historical performance of each station.                Shields, like any

Senior Manager, could seek a modification to reduce performance

goals if conditions warranted such a change. Shields’s performance

was also measured against a station budget established by the FedEx

Finance Department, which specified the number of packages that

should be handled and sorted by the BCB station during a given

period of time.        Finally, Shields was evaluated based on his

ability to meet prescribed goals relating to client service,

profitability, and management skills.

      During the time that Shields served as Senior Manager of the

BCB   station,   the   station   did   not   meet   many    of   the   standard

performance objectives. Shields acknowledged during his deposition

that the station fell short of its productivity goals, and, on

appeal, he does not dispute that the BCB station also did not meet

FedEx’s performance expectations in other areas, such as safety,

volume, employee retention, and cost per package.

      From August 2000 to October 2000, FedEx Vice President John

Formisano and Senior Vice President Ken May received a series of


                                       4
emails from hourly employees at the BCB station complaining that

the crush of overtime hours, in addition to Shields’s inability to

communicate effectively, created an impediment to good morale in

the BCB station, which had a higher rate of employee turnover than

any other station in the Capital District.            On October 7, Quirke

met with Shields’s subordinates to discuss “multiple complaints

regarding Mr. Shields’[s] management style, his demeanor, his

treatment of hourly employees, and the lack of communications by

and between management.”      J.A. 551.

     Against this backdrop, Quirke scheduled a meeting with Shields

on   October    10,   2000,   to    discuss    the    various    performance

deficiencies. Quirke suggested Shields step down to a lower Senior

Manager   position    –-    Shields    would   have     been    relieved   of

responsibility for the BCB station but could have continued to

manage another station in Winchester, Virginia –- as an alternative

to “receiving discipline for the performance deficiencies that

[Quirke] outlined for him.”           J.A. 551.      Shields rejected this

option.    In    turn,     Quirke   was   obligated    to   follow   FedEx’s

Performance Improvement Policy (“PIP”) to address the problems at

the BCB station.      Pursuant to the PIP, Shields was required to

create a Performance Agreement detailing the specific remedial

steps Shields planned to take in order to improve his performance

deficiencies and the morale problems at the BCB station.




                                      5
     Quirke rejected Shields’s proposed Performance Agreement for

failure to delineate the specific measures Shields intended to take

to improve his performance.         With Quirke’s assistance, Shields

eventually produced a Performance Agreement that was sufficiently

specific for Quirke and Shields signed the agreement in October

2000.

     In the ensuing three months, however, Shields failed to meet

or follow various goals established in the Performance Agreement.

Although failure to follow a Performance Agreement can provide

grounds for termination under FedEx’s PIP, Quirke issued Shields a

performance reminder on January 8, 2001, and informed Shields that

he would have to improve substantially to merit a satisfactory

performance evaluation score. Additionally, Quirke offered Shields

a severance package if he opted to resign instead of risking

additional sanctions for poor performance.       Shields rejected the

severance package.     On February 19, 2001, Shields received an

unsatisfactory overall performance rating.       Quirke then directed

Shields to submit a second Performance Agreement, but Shields was

not able to submit a proposal that was specific enough for Quirke.

Quirke ultimately terminated Shields as a result of his having

received three disciplinary letters within a 12-month period --

grounds for termination under the FedEx PIP.

     Shields contends that his poor performance evaluations, his

placement   in   the   PIP,   and   ultimately   his   dismissal,   were


                                     6
retaliatory acts by Quirke in response to what Shields claims was

his   opposition     to   illegal     employment       practices       by    FedEx.

Specifically, Shields claims that Quirke retaliated against him

because he reported two instances of racial discrimination in

September 2000.      The first instance involved an incident that

occurred at the BCB station on Shields’s day off.                     Manager Rva

Pendleton, who was under the direct supervision of Shields, became

involved in a dispute with Noelle Olson, a courier at the BCB

station,   and    eventually   terminated      Olson    as   a    result     of    her

conduct. Olson challenged her termination through FedEx’s internal

grievance procedure, which led to an investigation of the incident

by    Quirke.       Quirke     concluded    that       Pendleton       had     acted

inappropriately in her capacity as a manager by provoking the

confrontation, and he directed Shields to issue Pendleton a formal

Warning Letter -- a very serious form of discipline at FedEx.

Although Shields issued the Warning Letter as he was instructed, he

told Quirke that he disagreed with this mode of punishment. First,

Shields believed that a Warning Letter was unwarranted and that a

less severe “documented counseling” was more appropriate in light

of Pendleton’s inexperience as a manager.              Second, Shields claims

that he told Quirke that any discipline administered to Pendleton

should likewise be administered to Cliff Dalton, another manager

under Shields’s supervision who was on duty that day. According to

Shields,   both    Pendleton    and   Dalton    “tr[ied]         to   handle      this


                                      7
disruptive employee,” J.A. 122, and thus he urged Quirke not to

punish Pendleton more severely than Dalton. In Shields’s mind, the

only difference between Pendleton, who is black, and Dalton, who is

white, was race.          Ultimately, however, Shields never mentioned

race.    Although Shields advocated uniform treatment for Pendleton

and Dalton, he never suggested to Quirke or to anyone else at FedEx

that Pendleton was being treated more harshly because of her race.1

     The second incident underlying Shields’s retaliation claim

involved a racial slur against Shields that was not uttered in his

presence but was reported to Shields by Dalton. In September 2000,

Bobby Richesin, an hourly worker who reported directly to Shields,

referred     to    Shields   in   racially       offensive   terms    and   crude

pejorative        terms   relating   to       Shields’s   sexual     orientation.

Although Shields decided to suspend Richesin, he first consulted

Dick Schmidt, the Human Resources manager for the Capital District.

Schmidt cautioned Shields about reacting in an “emotional” fashion

and suggested that Shields consider Richesin’s ten-year employment

history at FedEx before acting.           Shields also discussed the matter

with Quirke, who, according to Shields, concurred with Schmidt.

Nevertheless, Shields suspended Richesin for six weeks pending an

investigation of the incident.                Quirke ultimately decided that

“Richesin had made inappropriate remarks in the presence of hourly


     1
      Subsequently, Pendleton filed an internal grievance and
succeeded in having the discipline imposed against her modified to
that initially recommended by Shields -- a documented counseling.

                                          8
co-workers,” J.A. 562, and concluded that the appropriate sanction

was a formal Warning Letter and a transfer to another station.

Richesin opted to resign.

     In this lawsuit, Shields asserts three claims against FedEx

under Title VII.   First, he claims that he was subjected to a

racially hostile work environment at the BCB station.       Second,

Shields contends that FedEx subjected him to disparate treatment by

terminating him for poor performance when it did not impose a like

sanction on two similarly situated white Senior Managers.   Third,

Shields argues that FedEx gave him poor performance evaluations and

ultimately terminated him in retaliation for his objecting to

Pendleton’s discipline and reporting Richesin’s racial slurs --

protected activities under Title VII, Shields argues. The district

court granted summary judgment to FedEx on each of these claims.

Shields now appeals the ruling of the district court.2



                               II.

                                A.

     Shields seems to believe that a hostile work environment

existed because of the statements Richesin made to a co-employee



     2
      Shields named Quirke as a defendant in his individual
capacity. The district court dismissed Quirke from the action as
an improper defendant. See Lissau v. Southern Food Service, Inc.,
159 F.3d 177, 181 (4th Cir. 1998). The district court’s ruling was
clearly correct, and Shields does not appeal this portion of the
district court’s order.

                                9
which were ignored by management.       To get this claim to trial,

Shields “must demonstrate that a reasonable jury could find [the]

harassment (1) unwelcome; (2) based on race; and (3) sufficiently

severe or pervasive to alter the conditions of employment and

create an abusive atmosphere.”   Spriggs v. Diamond Auto Glass, 242

F.3d 179, 183-84 (4th Cir. 2001).     Then, even if Shields creates an

issue of fact with respect to each of these elements, he must

demonstrate “that there is some basis for imposing liability” upon

FedEx for Richesin’s conduct. Id. at 184 (internal quotation marks

omitted).

     The district court concluded that Shields failed to produce

sufficient evidence for a trier of fact to find that the alleged

harassment was so “severe and pervasive” that it “alter[ed] the

terms and conditions of employment.”      J.A. 375.   In his appellate

brief, Shields does not develop a separate and independent argument

contesting the district court’s rejection of Shields’s hostile work

environment claim.    However, in arguing that FedEx retaliated

against him because he reported the racially offensive language

used in the workplace, Shields essentially claims that a racially

hostile work environment existed at the BCB FedEx station.        Like

the district court, we fail to see sufficient evidence that the

unwelcome conduct at issue was “severe and pervasive” for purposes

of a Title VII hostile work environment claim.




                                 10
       Shields suggests that the singularly offensive racial slur

used by Richesin, coupled with what Shields perceived to be upper

management’s    laissez-faire     attitude    about    such   conduct,     was

sufficient to satisfy the prima facie elements in this case.

Shields relies on our own observations about the impact of the

sanctioned use of this particular term on a given work environment:

“Perhaps no single act can more quickly alter the conditions of

employment and create an abusive working environment than the use

of an unambiguously racial epithet such as ‘nigger’ by a supervisor

in the presence of his subordinates.”          Spriggs, 242 F.3d at 185

(internal quotation marks omitted).         Of course, whether Richesin’s

slur was highly offensive, unwelcome, and racially motivated is not

the issue -- clearly, it was.      Rather, the question is whether the

use of racial epithets and abusive language so pervaded the work

environment at the BCB station that it was essentially transformed

into an atmosphere tinged with racial hostility and altered the

conditions of Shields’s employment.         “As a general rule, incidents

must be more than episodic; they must be sufficiently continuous

and concerted in order to be deemed pervasive.”             Feingold v. New

York, 366 F.3d 138, 150 (2nd Cir. 2004) (internal quotation marks

omitted).     Thus, “isolated incidents (unless extremely serious)

will   not   amount   to   discriminatory    changes   in   the   ‘terms   and

conditions of employment.’”       Faragher v. City of Boca Raton, 524

U.S. 775, 788 (1998) (emphasis added).


                                    11
          There are obvious and substantial differences between this

case and Spriggs.            Spriggs involved “frequent” and “pervasive” use

of    racially      degrading      insults     that     substantially     impeded   the

victim’s “ability to concentrate” or “effectively interact with

. . . customers.”            Spriggs, 242 F.3d at 185-86 (internal quotation

marks omitted).          Shields, on the other hand, bases his claim on a

single racial slur that was not uttered in his presence.                       Another

distinguishing factor is that Shields wielded supervisory power to

make Richesin cease making his racist comments by suspending him.

In sum, there is no evidence that the workplace environment at the

BCB    station,        for    which   Shields     was    largely   accountable,     was

racially oppressive, hostile, or abusive.                     Thus, we affirm the

district court’s grant of summary judgment as to the hostile work

environment claim.

                                             B.

          In   order    to    clear   the    summary     judgment   hurdle     on   his

retaliation claim, Shields must demonstrate that “(1) [he] engaged

in    a    protected         activity:   (2)    the     employer   took   an   adverse

employment action against [him]; and (3) a causal connection

existed between the protected activity and the asserted adverse

action.”         Von Gunten v. Maryland, 243 F.3d 858, 863 (4th Cir.

2001).         An employee who “oppose[s] any practice made an unlawful

employment practice by [Title VII]” has engaged in protected

activity.         42 U.S.C.A. § 2000e-3(a) (West 2003); see Kubicko v.


                                             12
Ogden Logistics Servs., 181 F.3d 544, 551 (4th Cir. 1999) (noting

that “protected activities” may consist of either “opposition” or

“participation” activities).          Protected “[o]pposition activity

encompasses 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.”

Kubicko, 181 F.3d at 551 (internal quotation marks omitted).                 A

plaintiff need not demonstrate that the employer has actually

violated Title VII; rather, the plaintiff must show that “he

opposed    an   unlawful    employment     practice   which   he   reasonably

believed had occurred or was occurring.”              Peters v. Jenney, 327

F.3d 307, 320 (4th Cir. 2003) (internal quotation marks omitted).

      The district court granted FedEx’s motion for summary judgment

on   the   retaliation     claim,   reasoning   that    Shields    failed   to

demonstrate he had engaged in protected activity.             Specifically,

the district court concluded that there was “no evidence that

[Shields] sought to expose any discriminatory activity,” J.A. 381,

when he expressed disagreement with Quirke’s intended course of

discipline for Pendleton, and thus there was no protected activity.

Likewise, the district court concluded Shields’s objection to the

racial slur did not qualify as opposition activity because Shields

could not have reasonably believed that such conduct violated Title

VII since Shields “was accosted by a subordinate, reported the




                                      13
offensive behavior, and compelled action against the subordinate.”

J.A. 382.

     On appeal, Shields argues that he was engaged in opposition

activity for purposes of Title VII because he reasonably believed

that he was opposing disparate treatment of Pendleton that could

only be explained in terms of race, and that he was opposing

unlawful racial harassment related to Richesin’s conduct.                 See

Alexander v. Gerhardt Enters., Inc., 40 F.3d 187, 195-96 (7th Cir.

1994) (concluding that it was protected activity for an employee to

send company officials a memorandum reporting supervisor’s use of

single   racial    slur).       Even   assuming   that    Shields’s    actions

constituted protected activity, we hold that summary judgment was

nevertheless      appropriate    because    Shields      failed   to   provide

sufficient evidence of a causal link between the protected activity

and the alleged adverse employment actions.           Although the district

court did not rest its holding on this basis, we may affirm summary

judgment for any reason supported by the record.              See Republican

Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992).

     A plaintiff claiming retaliation must establish that the

employer had knowledge of the protected activity in order for its

subsequent adverse employment actions to be retaliatory.                  See

Luckie v. Ameritech Corp., 389 F.3d 708, 715 (7th Cir. 2004) (“[A]n

employer cannot retaliate when it is unaware of any complaints” of

illegal employment practices. (internal quotation marks omitted)).


                                       14
Although     Shields    voiced    his   disagreement           regarding      Quirke’s

proposed discipline of Pendleton, it is undisputed that Shields did

not communicate to Quirke or any one else at FedEx that he was

opposing what he believed to be a racially discriminatory action.

Instead, Shields’s own testimony revealed that his complaints

focused on basic fairness as he believed that Pendleton should have

been afforded leniency because of her inexperience, and that Dalton

should receive identical discipline.               Having presented no evidence

of    Quirke’s   knowledge   that    Shields        was    engaged     in    protected

activity when he opposed the discipline administered to Pendleton,

Shields failed to show the required causal link to the alleged

adverse employment actions.

       We   likewise   conclude    that      the    lack    of     evidence    showing

causation defeats Shields’s retaliation claim to the extent it is

based on his complaint to Quirke and Schmidt, the Human Resources

manager,     about   employee    Richesin’s        use    of   a    racial    epithet.

Shields’s only evidence of causation is the temporal proximity of

the protected activity and the alleged adverse employment action

taken by FedEx. Generally speaking, temporal evidence alone cannot

establish causation for a prima facie case of retaliation, unless

the    “temporal     proximity    between     an     employer’s       knowledge    of

protected activity and an adverse employment action” was “very

close.”     Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273

(2001) (per curiam) (internal quotation marks omitted). Clark does


                                        15
not establish the outer boundaries for temporal proximity to be

considered “very close,” but it does cite examples of insufficient

temporal proximity -- evidence that the employer took the adverse

action three or four months after the protected activity cannot

alone establish causation.            See id. at 273-74.       After the Clark

decision, we concluded that a ten-week gap between protected

activity and termination “gives rise to a sufficient inference of

causation” but was “sufficiently long so as to weaken significantly

the inference of causation between the two events.”                      King v.

Rumsfeld, 328 F.3d 145, 151 & n.5 (4th Cir.), cert. denied, 124 S.

Ct. 922 (2003).

     According to Shields, the relatively short gap between the

time he reported Richesin’s despicable workplace language and the

time Shields suffered an adverse employment action gives rise to an

inference of causation.         Shields argues that even before he was

terminated   on   February      26,    2001,   FedEx   took    various   adverse

employment actions against him, including the issuance of an

unsatisfactory rating on his formal performance evaluation on

February   19,    2001,   and    even    the   issuance   of    a   Performance

Reminder/Warning Letter on January 8, 2001.            Assuming for the sake

of analysis that the Performance Reminder qualified as an adverse

employment action, see Roberts v. Roadway Exp., Inc., 149 F.3d

1098, 1104 (10th Cir. 1998), Shields’s only evidence that a causal

link existed is the fact that only three to four months passed


                                        16
between Shields’s protected activity and the first warning letter

he received.   He argues that this evidence is sufficient to get him

by summary judgment, given that it is consistent with Carter v.

Ball, 33 F.3d 450, 460 (4th Cir. 1994), where the four-month gap

separating a protected activity -- Carter’s filing of formal EEO

charges -- from Carter’s demotion was sufficient to establish the

requisite causal link.       We disagree.       First, the Supreme Court

issued Clark County after our decision in Carter, casting some

doubt on the extent to which we can use a four-month gap alone as

sufficient proof of causation.        Second, even before the Richesin

incident in September 2000, Quirke “became aware that the BCB

station was not meeting performance expectations.” J.A. 549. FedEx

introduced documentary evidence to this effect from Shields’s file

detailing a number of problems at the BCB station.         Additionally,

Quirke, having received extensive emails from the hourly BCB

employees, had good reason for concern about Shields’s management

style before Shields ever discussed Richesin’s behavior with him.

Shields   presented   no   further   evidence    demonstrating   that   his

discipline and termination were linked in any way whatsoever to his

complaint of Richesin.

     Accordingly, we affirm the grant of summary judgment to FedEx

on the retaliation claim.




                                     17
                                       C.

       Finally, Shields challenges the district court’s entry of

summary judgment against him on his disparate treatment claim. The

thrust    of   this    claim   is   that    Shields   suffered    more   severe

consequences for failure to meet performance expectations than did

two similarly-situated Senior Managers, Clint Barnes and Charlie

Hergesheimer, both of whom are white. The district court held that

Shields failed to proffer sufficient evidence to create a question

of fact on the issue of whether he was treated differently than

Barnes and Hergesheimer.        We affirm.

       In the context of a discipline case, the familiar elements of

a prima facie showing are that (1) plaintiff belongs to a protected

class; (2) plaintiff “engaged in prohibited conduct similar to that

of a person of another race;” and (3) “that disciplinary measures

enforced against the plaintiff were more severe than those enforced

against the other person.”          Moore v. City of Charlotte, 754 F.2d

1100, 1105-06 (4th Cir. 1985).         Only the third element remains an

issue on appeal.

       Barnes was the Senior Manager of a station in the same

district as the BCB station.           In February 2001, Quirke issued

Barnes a Performance Evaluation with unsatisfactory ratings in two

of ten categories -- certainly not an enviable score, but, unlike

Shields, Barnes still obtained an acceptable overall total.               Just

like     Shields,     Barnes   submitted     and   followed   a   Performance


                                       18
Agreement. Barnes realized some gains in the deficient categories,

but he did not achieve the level of progress anticipated by Quirke.

Like Shields, Barnes received a Performance Reminder when he failed

to reach the target performance levels.    Ultimately, Barnes asked

to be transferred back to a manager position once again, with a

three-grade level reduction in pay.

     Hergesheimer was the Senior Manager of a station in Alexandria

that was under Quirke’s supervision in the Capital District.

Hergesheimer had only been on the job for six months when Quirke,

reviewing the station’s deficient performance, asked Hergesheimer

to accept a demotion to a manager position in Maryland at a three-

level reduction salary.   Hergesheimer agreed.

     All three were deficient in their job performances as managers

and each was given the same chance to accept a demotion in order to

avoid further disciplinary action.    In other words, they were each

treated the same.   The fact that the Caucasian managers chose the

demotions and Shields chose a challenge he would eventually lose

does not show at all disparate disciplinary measures by FedEx.

     Accordingly, for the reasons set forth above and stated in the

opinion of the district court, we affirm the ruling of the district

court on Shields’s disparate treatment claim.




                                19
                             III.

    For the reasons set forth above, we affirm the ruling of the

district court.

                                                        AFFIRMED




                              20
