                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 13-1935


HEATHER ROME,

                Plaintiff – Appellant,

           v.

DEVELOPMENT ALTERNATIVES, INC.,

                Defendant – Appellee.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, Senior District Judge.
(8:11-cv-02965-RWT)


Argued:   September 17, 2014                 Decided:   October 8, 2014


Before WILKINSON, SHEDD, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Donald James Walsh, OFFIT KURMAN, P.A., Owings Mills,
Maryland, for Appellant.   Kathleen Mae Williams, EPSTEIN BECKER
& GREEN, P.C., Washington, D.C., for Appellee.        ON BRIEF:
Stephen H. Kaufman, OFFIT KURMAN, P.A., Owings Mills, Maryland,
for Appellant.   Frank C. Morris, Jr., EPSTEIN BECKER & GREEN,
P.C., Washington, D.C., for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Heather Rome contends in this Title VII action that her

former        employer,    Development          Alternatives,      Inc.     (“DAI”),

involuntarily        transferred      and       constructively     discharged      her

because       she   complained   to    DAI      management   about    the    alleged

misogynistic conduct of another DAI employee. The district court

entered summary judgment in DAI’s favor, concluding that Rome

failed to present sufficient evidence to establish a prima facie

case of retaliation. 1 For the reasons that follow, we affirm.

                                            I

     Under Rule 56(a) of the Federal Rules of Civil Procedure,

the district court “shall grant summary judgment if the movant

shows that there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.” In

making    that      determination,    the       district   court   must     view   the

evidence in the light most favorable to the non-moving party.

Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014). We review the

grant    of    summary    judgment    de    novo,    using   the   same   standard.

Henry v. Purnell, 652 F.3d 524, 531 (4th Cir.) (en banc), cert.

denied, 132 S.Ct. 781 (2011).



     1
        Rome brought several other claims against DAI. The
district court also entered summary judgment for DAI on those
claims, but Rome has limited this appeal to her retaliation
claim.


                                            2
       The pertinent portion of Title VII, 42 U.S.C. § 2000e–3(a),

prohibits      “employer      retaliation              on    account         of    an    employee’s

having opposed, complained of, or sought remedies for, unlawful

workplace      discrimination.”        Univ.            of    Tex.      S.W.       Med.    Ctr.   v.

Nassar,    133      S.Ct.    2517,    2522         (2013).        Because          Rome    did    not

present     direct     evidence      of    retaliation,                 the       district    court

analyzed      her     retaliation      claim            under     the        familiar        burden-

shifting      framework      established           in       McDonnell        Douglas      Corp.    v.

Green, 411 U.S. 792 (1973).

       Under this framework, the employee must first establish a

prima facie case of retaliation. To do so, the employee must

show   that    (1)    she    engaged      in       a    protected        activity;         (2)    her

employer      acted    adversely      against           her;      and    (3)       the    protected

activity was causally connected to the adverse action. Hoyle v.

Freightliner, LLC, 650 F.3d 321, 337 (4th Cir. 2011). If the

employee makes this showing, the burden shifts to the employer

to present a legitimate non-retaliatory reason for the alleged

adverse    action.      Id.    This    is      “a           burden      of    production,         not

persuasion.” Holland v. Washington Homes, Inc., 487 F.3d 208,

214 (4th Cir. 2007). If the employer meets this burden, the

employee must show that the proffered reason is pretextual –

i.e., “unworthy of credence.” Id. Throughout this process, the

employee      bears    the    ultimate     burden            of   establishing            that    her



                                               3
protected activity “was a but—for cause” of the alleged adverse

action. Nassar, 133 S.Ct. at 2534.

       An employer that deliberately makes the working conditions

intolerable in an effort to induce an employee to quit can be

considered to have constructively discharged the employee. See

Freeman v. Dal-Tile Corp., 750 F.3d 413, 425 (4th Cir. 2014). To

succeed on a constructive discharge claim, the employee must

prove two elements: (1) the deliberateness of the employer’s

actions,    motivated      by   unlawful      bias,   and   (2)    the    objective

intolerability of the working conditions. Id. We have explained

that because the claim of constructive discharge “is so open to

abuse by those who leave employment of their own accord,” it

must   be   “carefully      cabined,”    and     “dissatisfaction         with    work

assignments,       a    feeling     of   being    unfairly        criticized,       or

difficult     or       unpleasant    working      conditions        are     not     so

intolerable as to compel a reasonable person to resign,” Honor

v. Booz-Allen & Hamilton, Inc., 383 F.3d 180, 187 (4th Cir.

2004) (citations omitted and punctuation altered).

                                         II

       Generally, the evidence in this case establishes that DAI

is a government contractor that works with different nations to

achieve various humanitarian and economic changes. Beginning in

2002, DAI was awarded a contract which was aimed at promoting

democracy in Venezuela. In 2005, Rome took a position supporting

                                         4
this   contract     in   DAI’s    Venezuelan        office.        One   of     Rome’s   co-

employees in the Venezuela office was Eduardo Fernandez. Rome

and Fernandez were supervised by Mike Godfrey in DAI’s Bethesda,

Maryland, office; Godfrey reported to Bruce Spake.

       In early January 2008, while she was in the United States,

Rome met with Spake and complained about Fernandez’s conduct. In

response, DAI management summoned Fernandez to its home office

and issued him a warning. Rome’s complaint was referred to Human

Resources, which in turn investigated and worked to resolve the

issues. 2   Following     an    investigation          by    DAI    management,      which

included a visit to Venezuela by Godfrey, DAI sponsored team-

building    exercises     and     provided      a    mentor        to    work    with    the

Venezuela staff. Despite DAI’s efforts, Rome’s relationship with

Fernandez did not improve, and they were unable to work together

productively.

       In   March    2008,       shortly       after        the    mentoring       program

concluded, Rome began an approved personal leave to travel to

China. Upon her return from China, Rome advised DAI of medical

issues and her need for surgery, which was scheduled in the

United States. Rome extended her leave several times, initially

       2
       Rome makes much of the fact that a member of DAI’s human
resources department initially opined that Fernandez should be
removed from his position in the Venezuela office. That
employee’s opinion, however, was made before DAI had fully
investigated Rome’s complaints, and it was not shared by other
human resources personnel.


                                           5
with a return date of May 7, then early June, and then June 25.

Finally, as of August 25, Rome notified DAI that she remained

unable to work.

      On   June    12,   Spake,      with    whom       Rome    acknowledges    a   long-

standing good relationship, telephoned Rome to discuss staffing

in the Venezuela office. Rome advised Spake that she was unable

to   return   to     work    at    that     time.       Spake   stated   that     it   was

necessary to fill Rome’s position in Venezuela and that he would

personally assist Rome in obtaining any job in the company in

which she was interested when she was able to return to work.

Rome voiced no objection to this plan, and in her deposition

stated that she always intended to return to DAI. However, she

never notified DAI that she was able to return to work, she did

not respond to messages from DAI, and she never inquired about

any DAI job openings. Rome remained employed by DAI with full

benefits until January 2009, when DAI concluded that she had

abandoned her employment.

      DAI moved for summary judgment on Rome’s retaliation claim,

arguing that she could not establish any of the elements of a

prima facie case of retaliation, could not establish pretext,

and could not establish that she was constructively discharged.

In   granting      summary        judgment        for   DAI,     the   district     court

concluded     that    Rome    engaged        in    protected      activity     when    she

complained to DAI management about Fernandez’s conduct, but she

                                             6
failed     to   establish          that     she       suffered      an       adverse    action

(including a constructive discharge) and failed to demonstrate a

causal connection between her protected conduct and the alleged

adverse actions.

      Explaining     its       conclusion            regarding      the      adverse    action

element,    the    district         court    noted      that     Rome     admitted      in   her

deposition “that she was told that she could choose to work

anywhere [in DAI] upon her return [from medical leave] and she

never    advised     [DAI]         when    she       planned   to    return       and     never

requested a specific transfer position.” J.A. 1312-13. In light

of this record, the court stated that “it’s quite difficult, if

not   impossible     .    .    .    to    determine       whether        a   transfer     is    a

constructive discharge when no transfer position was tendered,

nor rejected by [Rome].” J.A. 1313. For this reason, the court

found that it had insufficient facts to “conclude reasonably

that a proposed transfer was intolerable because there is no

information       regarding         the     potential      transfer           location,      job

duties or salary.” Id.

      Explaining its conclusion regarding the causal connection

element,    the     district         court       noted    that      there       was    not     an

especially strong temporal connection between Rome’s complaint

about    Fernandez       and       the    alleged       adverse     action.       The     court

further stated that based on the circumstances presented – i.e.,

Rome took an extended leave of absence, she was offered the

                                                 7
opportunity to return but did not do so, and her job was deemed

abandoned – “there simply is an inadequate basis to find the

causal connection.” J.A. 1314.

     Based on these conclusions, the district court held that

Rome failed to establish a prima facie retaliation case and,

accordingly,    DAI     was    entitled       to   summary       judgment          on    the

retaliation claim. Given the dispositive nature of that holding,

the court did not address DAI’s pretext argument.

                                      III

     On appeal, Rome challenges the district court’s conclusion

that she failed to establish a prima facie retaliation case. In

response, DAI contends that the court’s conclusion is, with one

exception, correct. 3 Additionally, DAI reiterates its argument

that even if Rome could establish a prima facie case, she has

failed   to   present    sufficient      evidence        to    establish      that        its

stated   reasons      for      transferring        her        from       Venezuela        and

terminating her employment are pretextual.

     Having carefully considered the record, the briefs, and the

oral arguments, we conclude that the district court properly

determined     that     Rome    failed       to    establish         a     prima        facie

     3
       Although DAI agrees with the district court that Rome
failed to establish a prima facie retaliation case, it cursorily
argues that the court incorrectly concluded that Rome engaged in
protected activity under Title VII. See Brief of Appellee, at 23
n.12. For purposes of our decision, we need not resolve this
issue.


                                         8
retaliation case. Without deciding all of the issues before us,

we specifically hold that the court correctly concluded that

Rome       failed    to    establish:          (1)    that    she   was    constructively

discharged and (2) the existence of a causal connection between

her complaint about Fernandez and DAI’s decision to transfer

(and ultimately to terminate) her.

       Apart from Rome’s failure to establish a prima facie case,

we also hold that she has failed to present sufficient evidence

of pretext. See Eisenberg v. Wachovia Bank, N.A., 301 F.3d 220,

222 (4th Cir. 2002) (court of appeals may affirm on any basis

fairly      supported        by   the      record).    DAI    has   presented       evidence

tending to establish that Spake decided to remove Rome from the

Venezuelan          office     for     a    variety    of     reasons,     including       her

inability      to     return      to    work    from    her   leave   of        absence,   his

awareness that she had been previously applying for other DAI

jobs, his perception (and advice from other employees) that Rome

was    unhappy        in     Venezuela,        and   the     fact   that    everyone       was

satisfied       with       Rome’s       temporary      replacement         in    Venezuela. 4

Moreover, DAI has posited that it ultimately terminated Rome’s

employment because she abandoned it. Rome’s failure to establish

that these reasons are unworthy of credence (or are otherwise


       4
      While Rome was on leave, Erin Upton-Cosulich filled in for
her in the Venezuela office. Upton-Cosulich eventually replaced
Rome.


                                                 9
pretextual)    is    an   additional    ground   supporting    the   summary

judgment. 5

                                       IV

     Based    on    the   foregoing,   we   affirm   the   summary   judgment

entered in DAI’s favor on Rome’s Title VII retaliation claim.



                                                                     AFFIRMED




     5
       We note that Rome states in her appellate brief that DAI
removed her from Venezuela “because of its economic concerns for
keeping its customer happy and winning the [Venezuela] contract
on recompete.” Brief of Appellant, at 20; see also id. at 32
(“DAI elected to remove Ms. Rome out of concern for client
interests and concern over winning the recompete of the
[Venezuela] contract”). These business reasons, if true, do not
tend to establish that DAI transferred Rome because she
complained about Fernandez.


                                       10
