UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MICHAEL A. SCOTT,
Plaintiff-Appellant,

v.

NORFOLK SOUTHERN CORPORATION; D. R.
GOODE, individually and in his official
capacity with Norfolk Southern
Corporation; S. C. TOBIAS, individually
and in his official capacity with
Norfolk Southern Corporation; J. L.
MANETTA, individually and in his
official capacity with Norfolk Southern
Corporation; D. W. MAYBERRY,
individually and in his official capacity
with Norfolk Southern Corporation;
W. E. HONEYCUTT, individually and in
                                            No. 97-1490
his official capacity with Norfolk
Southern Corporation; L. D. HALE,
individually and in his official capacity
with Norfolk Southern Corporation;
T. A. HEILIG, individually and in his
official capacity with Norfolk Southern
Corporation; C. D. VITTUR, individually
and in his official capacity with
Norfolk Southern Corporation; D. D.
GRAAB, individually and in his official
capacity with Norfolk Southern
Corporation; A. L. LUTTRELL,
individually and in his official capacity
with Norfolk Southern corporation;
J. R. GRAY, individually and in his
official capacity with Norfolk Southern
Corporation; W. F. HENLEY,
individually and in his official capacity
with Norfolk Southern Corporation;
J. E. PAIR, individually and in his
official capacity with Norfolk Southern
Corporation; J. W. CLEMMER,
individually and in his official capacity
with Norfolk Southern Corporation,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Henry C. Morgan, Jr., District Judge.
(CA-96-257-2)

Submitted: June 2, 1998

Decided: June 24, 1998

Before WIDENER, WILLIAMS, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.

_________________________________________________________________

COUNSEL

Michael A. Scott, Appellant Pro Se. James Stanton Whitehead, SID-
LEY & AUSTIN, Chicago, Illinois; Samuel Johnson Webster,
Heather Ann Mullen, David Nash Payne, WILLIAMS, KELLY &
GREER, Norfolk, Virginia, for Appellees.

_________________________________________________________________

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Michael A. Scott appeals from several district court orders dismiss-
ing a variety of claims involved in Scott's employment discrimination
action. We affirm in part, vacate in part, and remand.

Scott was employed by the Defendant, Norfolk Southern Corpora-
tion ("Norfolk Southern") from August 1985 to February 1996. In
1995, Scott filed a discrimination complaint with the Equal Employ-
ment Opportunity Commission ("EEOC") alleging same-gender sex-
ual harassment and a sexually hostile environment. Following his
termination, Scott filed another discrimination complaint with the
EEOC alleging racial discrimination and retaliation for the filing of
his 1995 EEOC complaint.

Following the 1996 EEOC charge, Scott filed this complaint
against Norfolk Southern and fourteen individual executives, manag-
ers and supervisors of Norfolk Southern, setting out twenty-four
counts based on Title VII and an on-the-job injury. Scott amended his
complaint three times, and the district court entered an order accept-
ing Scott's third amended complaint, which set forth thirty-two
counts, as the operative complaint.* Defendants filed a motion to dis-
miss pursuant to Fed. R. Civ. P. 12(b)(6). On August 14, 1996, the
district court entered an order dismissing all claims against the indi-
vidual Defendants, dismissing counts 2-21, 23, 24, 31, and 32 against
Norfolk Southern, and granting Scott leave to amend counts 1, 22, 25,
26, 27, 28, 29, and 30 against Norfolk Southern. Pursuant to the
court's August 14 order, Scott again amended his complaint against
Norfolk Southern setting forth eight counts.
_________________________________________________________________

*On May 3, 1996, Scott filed a motion to amend his complaint for the
fourth time. The district court denied the motion on June 7, 1996.

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On February 5, 1997, the district court granted summary judgment
to Norfolk Southern on counts 5, 6, 7, and 8, and denied Norfolk
Southern's motion to dismiss on count 4--leaving counts 1, 2, 3, and
4. On April 1, 1997, the court entered an order dismissing part of
Scott's count one. A jury trial commenced on February 18, 1996, and
final judgment was entered April 4, 1996. The jury verdict dismissed
counts 1, 2, and 4, and found in favor of Scott on count 3. Scott was
awarded $4998 with interest at the rate of 6%. Scott timely appealed.

On appeal, Scott raises several issues concerning each of the dis-
trict court's orders. The first issue raised is that the district court erred
in its April 1, 1997 order by dismissing his Title VII claim of retalia-
tion. Scott alleged that he was transferred in February 1996 as a result
of his 1995 EEOC charge, in which he asserted same-gender sexual
harassment and a sexually hostile environment. In dismissing Scott's
Title VII retaliation claim, the district court relied on McWilliams v.
Fairfax County Bd. of Supervisors, 72 F.3d 1191 (4th Cir. 1996), and
Mayo v. Kiwest Corp., No. 95-2638, 1996 WL 460769 (4th Cir. Aug.
15, 1996) (unpublished). In McWilliams, this Court held that same-
gender sexual harassment was not actionable under Title VII absent
an allegation that either the victim or the harassers were homosexual
or bisexual. See McWilliams, 72 F.3d at 1195.

In Mayo, this Court held that "Title VII prohibits an employer from
discriminating against an employee in retaliation for that employee's
. . . complaint about [ ] an employment practice made unlawful under
Title VII." Mayo, 1996 WL 460769 at **4. The Court stated that the
employee needed an "objectively reasonable belief that he was the
victim of discrimination made unlawful under Title VII." Id. Looking
at the state of the law at the time of Mayo's complaint, this Court
found that "no court had held a hostile-environment claim actionable
where both the alleged harasser and the alleged victim 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 workplace differently than
women." Id. at **5. Given the state of the case law, the Court deter-
mined that Mayo was not reasonable in believing that his claim was
actionable under Title VII and thus, there was no protected activity
on which to base a retaliation claim. Id.

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However, the Supreme Court has recently issued its decision in
Oncale v. Sundowner Offshore Servs., Inc., 118 S. Ct. 998 (1998), in
which the Court held that sex discrimination consisting of same-sex
sexual harassment is actionable under Title VII and that it is not nec-
essary that the harasser be shown to be homosexual or bisexual. See
Oncale, 118 S. Ct. at 1002. The Court stated that "harassing conduct
need not be motivated by sexual desire to support an inference of dis-
crimination on the basis of sex." Because Oncale overrules previous
precedent in this Circuit, we vacate that portion of the district court's
April 1, 1997 order dismissing Scott's Title VII retaliation claim and
remand for further proceedings in light of Oncale. We affirm the
remainder of the district court's April 1 order.

As for Scott's remaining claims on appeal, we have reviewed the
district court's orders and find no reversible error. Accordingly, we
affirm the remainder of the district court's orders to the extent that
Scott has appealed them. 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 IN PART, VACATED IN PART, AND REMANDED

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