UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

WILLIAM GILYARD, III,
Plaintiff-Appellant,

v.
                                                                   No. 97-2362
U.S. DEPARTMENT OF ENERGY; HAZEL
O'LEARY, Secretary, U.S.
Department of Energy,
Defendants-Appellees.

Appeal from the United States District Court
for the District of South Carolina, at Aiken.
Charles E. Simons, Jr., Senior District Judge.
(CA-96-599-1-6BD)

Argued: June 5, 1998

Decided: March 10, 2000

Before WIDENER, ERVIN,* and WILLIAMS, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Richard E. Miley, North Augusta, South Carolina, for
Appellant. Barbara Murcier Bowens, UNITED STATES ATTOR-
_________________________________________________________________
*Judge Ervin heard oral argument in this case but died prior to the
time the decision was filed. The decision is filed by a quorum of the
panel. 28 U.S.C. § 46(d).
NEY'S OFFICE, Columbia, South Carolina, for Appellees. ON
BRIEF: J. Rene Josey, United States Attorney, UNITED STATES
ATTORNEY'S OFFICE, Columbia, South Carolina, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Plaintiff William Gilyard, III, a black male, was employed by the
defendant Department of Energy in 1983. In April of 1992, Gilyard
applied for the position of Personnel Officer, GM-0201-14, in the
Human Resources Division of the Department of Energy, Savannah
River Operation in Aiken, South Carolina. At the time of his applica-
tion, Gilyard was serving as a Contractor Industrial Relations Special-
ist, GS-0246-13 at the Savannah River Operation. The Department
hired a white female employee, Sara M. Larson, for the Personnel
Officer position, and the plaintiff filed a complaint with the Equal
Employment Opportunity Commission (EEOC), charging discrimina-
tion based on race and sex. The EEOC ruled adversely to Gilyard.
Consequently, he filed a civil action in the United States District
Court for the Southern District of Georgia alleging unlawful discrimi-
nation in violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e-2000e-17.

The case was transferred to the United States District Court for the
District of South Carolina and assigned to a United States Magistrate
Judge for report and recommendation. Thereafter, the defendant filed
a motion for summary judgment. For purposes of the summary judg-
ment motion, the Department of Energy conceded that Gilyard was
qualified for the position that he sought. The magistrate judge then
recommended that the district court grant the defendant's summary
judgment motion, which the district court granted. Plaintiff now
appeals, and we have jurisdiction pursuant to 28 U.S.C. § 1291. Upon
review, we affirm.

                    2
Summary judgment is appropriate where there is no genuine issue
of material fact, and the moving party is entitled to judgment as a
matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The court views the evidence presented in the light most favorable to
the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
256 (1986). We review the grant or denial of a motion for summary
judgment de novo. Myers v. Finkle, 950 F.2d 165, 167 (4th Cir.
1991).

In this appeal, the plaintiff raises two claims. First, he contends that
the district court erred in granting summary judgment because a genu-
ine factual dispute existed as to the qualifications of Miss Larson, the
person selected for the position. Second, Gilyard argues that a genu-
ine dispute existed as to retaliatory actions taken by the Department
upon learning that he was filing a claim with the EEOC. We consider
these claims in turn.

Gilyard alleges that Miss Larson was unqualified for the position
and that he presented evidence sufficient to raise a genuine issue of
this material fact. He rests this assertion on the testimony of Joel
Cote, a selecting officer, who testified that an administrative judge
had found Miss Larson unqualified in a separate, previous employ-
ment dispute. We have reviewed the documents and, contrary to
Cote's interpretation of the administrative judge's opinion, find that
the administrative law judge did not find Miss Larson unqualified. In
that case, the administrative law judge merely found that between two
qualified candidates, Miss Larson was the lesser qualified in one
respect and no better qualified in another.1

The other evidence Gilyard relies on to demonstrate a genuine
issue that Miss Larson is unqualified is that she had not worked for
one year at the GS-13 level. Nevertheless, the Office of Personnel
Management (OPM), in response to a precise question in this very
case, reviewed Miss Larson's qualifications and found her qualified
for the position. We have no reason to question this determination of
_________________________________________________________________
1 Cote's deposition is not exactly clear as to whether or not he was con-
struing the ALJ's opinion, or whether he had been told what the opinion
was, in which latter event the evidence was hearsay and inadmissible, as
well as not being on personal knowledge. Cf. Fed. R. Civ. P. 56(e).

                    3
OPM because it is the role of OPM to determine who among the
applicants meets the minimum qualifications threshold. Consequently,
we affirm the district court's finding that the plaintiff failed to show
a genuine issue of material fact existed regarding Miss Larson's
qualifications.2

Turning to the issue of retaliatory conduct on the part of the
Department, the plaintiff asserts that the new site manager, Dr. Mario
Fiori, retaliated against him for filing an EEOC claim by scheduling
a meeting 30 minutes before Gilyard was to be interviewed by the
EEOC. Fiori allegedly called the meeting to discuss handling EEOC
complaints in a speedy fashion.3

The plaintiff further alleges that at this meeting Dr. Fiori became
angry, hit the table and told him that he could not meet with the
EEOC investigator and that he should get a job elsewhere in the gov-
ernment because he was not part of the Savannah River team.

To survive summary judgment, Gilyard had to establish a prima
facie case of retaliation under Title VII. There are three elements to
a prima facie case: 1) the employee engaged in protected activity; 2)
the employer took adverse employment action against the employee;
and 3) a causal connection existed between the protected activity and
the adverse action. Ross v. Communications Satellite Corp., 759 F.2d
355, 365 (4th Cir. 1985). We only address the second element
because the facts of Gilyard's case with respect to this element justify
the district court's grant of summary judgment.
_________________________________________________________________
2 The letter from the OPM to the Department of Energy, the employer
in this case, was specific in its approval of Miss Larson's qualifications
for the job. The objection to its use is only that it is hearsay. While it is
true that such a letter may fit the definition of hearsay as an out-of-court
statement offered for the truth of the matter asserted, this letter is admis-
sible as a business record under Fed. R. Evid. 803(6). Cf. Brown v. ASD
Computing Ctr., 519 F. Supp. 1096, 1103-06 n.2 (S.D. Ohio 1981);
Nationwide Mut. Ins. Co. v. Stephens, 313 F. Supp. 890, 894 (W.D. Va.
1970), aff'd sub nom. Bernstein v. Nationwide Mut. Ins. Co., 458 F.2d
506 (4th Cir. 1972), cert. denied, 409 U.S. 812 (1972).
3 The record reveals that several EEOC complaints regarding the
Savannah River Operation were pending when Dr. Fiori became the site
manager.

                    4
In the present case, Gilyard emphasizes the meeting described
above. However, no adverse action has been taken against Gilyard.
Indeed, since the Personnel Officer position was filled and the meet-
ing occurred, Gilyard was promoted. Moreover, he presents no other
evidence of an adverse action taken against him that is not explained
as a managerial decision in the ordinary course of business.4

This evidence is not sufficient. As we have previously observed,
employees are not "guaranteed a working environment free of stress
. . . [d]issatisfaction with work assignments, a feeling of being
unfairly criticized, or difficult or unpleasant working conditions."
Carter v. Ball, 33 F.3d 450, 459 (4th Cir. 1994). Although we made
this observation in the context of a claim of racially discriminatory
discharge, it is equally applicable to the charge of retaliation that is
before us. Consequently, we find that the Department of Energy did
not take adverse action against Gilyard for asserting his rights by fil-
ing an EEOC claim.

We thus are of opinion that the district court properly granted sum-
mary judgment on Gilyard's claims of discrimination and retaliation.

Accordingly, the judgment of the district court is

AFFIRMED.
_________________________________________________________________

4 In his brief Gilyard also claims that these events created a hostile
work environment. In reviewing claims of a hostile or abusive work
environment, we examine whether a reasonable person would find the
environment sufficiently severe or pervasive to alter the conditions of
employment and create an abusive atmosphere. Carter v. Ball, 33 F.3d
450, 461 (4th Cir. 1994). Again, Gilyard produced no evidence that any
actions taken by the Department (canceling some training, altering some
responsibilities, staffing allocation decisions) were anything more than
managerial decisions in the ordinary course of business. From our review
of the hostile work environment claims, we cannot find that Gilyard pres-
ented evidence that survives a summary judgment motion by the Depart-
ment.

                     5
