PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

KAREN LAUGHLIN,
Plaintiff-Appellant,

v.
                                                                      No. 97-1188
METROPOLITAN WASHINGTON AIRPORTS
AUTHORITY; AUGUSTUS MELTON, JR.,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Robert E. Payne, District Judge.
(CA-96-1284-A)

Argued: April 7, 1998

Decided: July 2, 1998

Before WILLIAMS, Circuit Judge, PHILLIPS, Senior Circuit Judge,
and OSTEEN, United States District Judge for the Middle District
of North Carolina, sitting by designation.

_________________________________________________________________

Affirmed by published opinion. Judge Williams wrote the opinion, in
which Senior Judge Phillips and Judge Osteen joined.

_________________________________________________________________

COUNSEL

ARGUED: Jerry William Boykin, REDMON, BOYKIN & BRAS-
WELL, L.L.P., Alexandria, Virginia, for Appellant. Morris Kletzkin,
FRIEDLANDER, MISLER, FRIEDLANDER, SLOAN & HERZ,
Washington, D.C., for Appellees. ON BRIEF: Jerome Ostrov, Mark
D. Crawford, FRIEDLANDER, MISLER, FRIEDLANDER, SLOAN
& HERZ, Washington, D.C., for Appellees.

_________________________________________________________________

OPINION

WILLIAMS, Circuit Judge:

Karen Laughlin appeals the grant of summary judgment on her
claim of retaliatory discharge in violation of Title VII, 42 U.S.C.A.
§ 2000e-3 (West 1994), in favor of her former employer, Metropoli-
tan Washington Airport Authority (the MWAA). Title VII prohibits
an employer from retaliating against a worker for either participating
in a Title VII proceeding or opposing an employer's discriminatory
practices.1 See 42 U.S.C.A. § 2000e-3(a). Laughlin argues that the
district court erred when it determined that the unauthorized removal
of documents from her boss's desk constituted opposition rather than
participation under Title VII. See 42 U.S.C.A. § 2000e-3(a). Addi-
tionally, she asserts that the district court erred when it applied an
improper balancing test, which incorporated a rebuttable presumption,
to the facts of her case. Finally, Laughlin alleges that the district court
abused its discretion when it did not give her appropriate notice that
it intended to treat the motion captioned, "Motion to Dismiss, or, in
the alternative, Motion for Summary Judgment," as a motion for sum-
mary judgment under Rule 56. Because we determine that summary
judgment was appropriate, we affirm.

I.

These facts, drawn from Laughlin's pleadings, affidavits, and
depositions, are expressed in the light most favorable to her as the
non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
_________________________________________________________________
1 42 U.S.C.A. § 2000e-3(a) provides in pertinent part:

          It shall be an unlawful employment practice for an employer to
          discriminate against any of his employees . . . because he has
          opposed any practice made an unlawful employment practice . . .
          or because he has . . . assisted, or participated in any manner in
          an investigation, proceeding, or hearing under this subchapter.

                     2
255 (1986) (stating that an appellate court reviewing a grant of sum-
mary judgment is required to view the facts in the light most favor-
able to the non-moving party and must draw all reasonable inferences
therefrom).

Essential to understanding the incident that directly led to
Laughlin's termination are the events related to another MWAA
employee. Kathy LaSauce, an operations officer at the MWAA, filed
an informal complaint with the EEO officer at the MWAA against
William Rankin, LaSauce's supervisor. In her complaint, she alleged
that Rankin had retaliated against her for providing testimony in
another operations officer's EEO action. Initially LaSauce took her
complaint to the Washington National Airport manager, Augustus
Melton, Jr., in April 1994. Melton took steps to settle the complaint
informally. Those steps failed, and LaSauce filed a formal complaint
with the MWAA EEO officer and tendered her resignation. In the
process of investigating and attempting to settle the LaSauce/Rankin
dispute, in September 1994, Melton drafted a written warning to
Rankin regarding the inappropriate retaliatory actions that he had
taken against LaSauce. The written warning, however, was never for-
malized; it was neither signed by Melton nor seen by Rankin, it was
simply prepared and left on Melton's desk. At about the same time
that LaSauce's resignation became effective and Melton had drafted
the written warning, Rankin was selected for the job of El Paso Air-
port manager and tendered his resignation to the MWAA officials.

Meanwhile, Laughlin, a secretary to Melton, reported directly to
the airport manager's staff assistant. During the course of her regular
duties, on or about September 29, 1994, she discovered a copy of the
unsigned written warning on Melton's desk addressed to Rankin. She
noticed immediately that the written warning discussed the LaSauce
dispute. The written warning was date-stamped September 8, 1994.
Laughlin believed that the existence of the dated warning on the desk
was highly irregular because correspondence was not generally date-
stamped at the MWAA until it was in final form awaiting signature.
Alongside the written warning she found Rankin's resignation letter
explaining that he had been offered the position in El Paso, and a
news clipping, predating the resignation letter, from an El Paso news-
paper mentioning that Rankin was the front runner for the position in
El Paso. Laughlin was so surprised to see the unsigned correspon-

                    3
dence on her boss's desk that she immediately concluded that he was
engaging in a coverup to prevent LaSauce from having adequate
access to relevant documents for a future lawsuit. As a result of these
suspicions, Laughlin removed the documents, photocopied them, and
replaced the originals on her boss's desk. She sent the copies to
LaSauce with a note stating that she thought LaSauce might find them
interesting.

Laughlin's removal and copying of the documents was discovered
in 1996 during a deposition in a civil suit filed by LaSauce. Laughlin
was terminated as a result of removing the documents. Her termina-
tion notice stated in pertinent part that:

          1) you are a confidential employee in that you are an
          employee who acts in a confidential capacity with respect to
          me, the Airport Manager, who effectuates management poli-
          cies in labor-management relations; 2) you released a draft
          letter of reprimand, a personnel related document which is
          confidential by nature; 3) you released personal documents
          of Mr. William Rankin's, without his or my consent, that
          had been sent to me for my information; 4) you sent these
          documents to Ms. Kathy LaSauce on your own accord,
          without my consent; and 5) according to Ms. LaSauce's
          sworn deposition, she never asked you for these documents.

(J.A. at 20.)

II.

As a result of her termination, Laughlin filed a complaint with the
EEOC on April 18, 1996, alleging retaliatory dismissal. The EEOC
adjudicated the complaint and determined that the charge of unlawful
retaliation should be dismissed and issued a Notice of the Right to
Sue on June 20, 1996. Subsequently, Laughlin filed a complaint in the
district court on September 16, 1996, asserting a claim for unlawful
retaliation in violation of Title VII, 42 U.S.C.A.§ 2000e-3 (West
1994). The MWAA filed as its responsive pleading a"Motion to Dis-
miss, or, in the alternative, Motion for Summary Judgment" to which
it attached affidavits, a list of points upon which no material facts
were in dispute, the documents received by LaSauce, and several

                    4
excerpts from depositions taken in another case. Laughlin filed a
memorandum in opposition to the motion and attached an affidavit.

The district court held a hearing on the motion, characterized the
motion as one for summary judgment because matters outside the
pleadings had been introduced, and granted summary judgment to the
MWAA. The district court issued a Memorandum Opinion in which
it outlined the rationale for granting summary judgment. In its opin-
ion, the district court noted that to prevail on a Title VII claim of
retaliatory termination, a plaintiff must first prove that she engaged
in protected activity. Protected activity under Title VII is divided into
two categories, opposition and participation.2 The district court
decided as an initial matter that Laughlin's act of removing docu-
ments from her boss's desk did not constitute participation because
there was no ongoing investigation or proceeding relating to LaSauce
at the time of the incident. Therefore, the district court analyzed
Laughlin's actions under the opposition clause.

The court noted that a balancing test is usually applied to determine
whether opposition activity is protected under Title VII. See
Armstrong v. Index Journal Co., 647 F.2d 441, 448 (4th Cir. 1981)
(adopting balancing test first articulated in Hochstadt v. Worcester
Found. for Experimental Biology, 545 F.2d 222, 231 (1st Cir. 1976)).
The test balances the purpose of the Act to protect persons engaging
in reasonable activities opposing discrimination, against Congress'
desire not to prevent employers from legitimately disciplining their
employees. See id. The district court concluded, however, that the bal-
ancing test should not apply in this case. Rather, it concluded that
there should be a presumption against finding surreptitious, dishonest,
and disloyal behavior to be protected activity under Title VII. The dis-
trict court applied the presumption, and determined that Laughlin
could not overcome it. As an alternative holding, the district court
applied the long-standing balancing test (sans presumption) to deter-
mine whether Laughlin's activity was protected under the opposition
clause. The district court balanced the competing interests of Laughlin
and the MWAA and determined that Laughlin's subjective belief that
she needed to purloin the written warning and accompanying infor-
_________________________________________________________________
2 For the relevant text of 42 U.S.C.A. § 2000e-3(a) (West 1994), see
ante n.1.

                     5
mation to preserve the items as documentary evidence was com-
pletely unsupported. The district court also indicated that Laughlin
had made an insufficient showing that the MWAA's internal griev-
ance procedure would have proven inadequate to address her con-
cerns about the documents. Because the court concluded that
Laughlin's asserted reasons for taking her boss's documents were
inadequately supported by the affidavits before it, it concluded that
Laughlin's interest in promoting the nondiscriminatory purpose of
Title VII was outweighed by her employer's interest in maintaining
confidentiality and loyalty.

Laughlin filed a timely notice of appeal. She claims that the district
court erred in three respects. First, she argues that the district court
erred when it analyzed her claim under the opposition rather than the
participation clause of 42 U.S.C.A. § 2000e-3(a). Next, she argues
that the district court erred in adopting a rebuttable presumption that
disloyal activity is not protected opposition activity, rather than apply-
ing the well-established balancing test for analyzing such questions.
Finally, Laughlin argues that the district court abused its discretion
when it converted the MWAA's 12(b)(6) motion into a motion for
summary judgment under Rule 56, and thereby denied Laughlin ade-
quate opportunity for discovery. We address these arguments in turn.

III.

Summary judgment is appropriate when a party who will bear the
burden at trial fails to make a showing sufficient to establish an essen-
tial element of the case, see Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986), such that "there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of
law," Fed. R. Civ. P. 56(c). We review a grant of summary judgment
de novo, see Higgins v. E.I. DuPont de Nemours & Co., 863 F.2d
1162, 1167 (4th Cir. 1988), and view the facts in the light most favor-
able to the non-moving party, see Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). Guided by these principles, we address
Laughlin's arguments arising from her Title VII retaliation claim.

To prevail on her retaliation claim, Laughlin must satisfy the three-
step proof scheme established in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-04 (1973). First, Laughlin must establish, by a pre-

                     6
ponderance of the evidence, a prima facie case of retaliation. Once
established, the burden shifts to the MWAA to rebut the presumption
of retaliation by articulating a non-retaliatory reason for its action. See
Ross v. Communications Satellite Corp., 759 F.2d 355, 365 (4th Cir.
1985); cf. Texas Dep't of Community Affairs v. Burdine, 450 U.S.
248, 254 (1981). If the MWAA meets its burden of production, the
presumption of discrimination created by the prima facie case is
rebutted and "drops from the case," Burdine, 450 U.S. at 255 n.10,
and Laughlin bears the ultimate burden of proving that she has been
the victim of retaliation, see St. Mary's Honor Ctr. v. Hicks, 509 U.S.
502, 506-11 (1993).

On appeal, Laughlin contends that she forecasted sufficient evi-
dence to establish a prima facie case of retaliation under Title VII and
that the district court erred when it granted summary judgment to the
MWAA. To establish a prima facie case of retaliation, a plaintiff must
prove three elements: (1) that she engaged in protected activity, (2)
that an adverse employment action was taken against her, and (3) that
there was a causal link between the protected activity and the adverse
employment action. See Hopkins v. Baltimore Gas & Elec. Co., 77
F.3d 745, 754 (4th Cir.), cert. denied, 117 S. Ct. 70 (1996). It is
undisputed that Laughlin suffered an adverse employment action and
therefore satisfies the second requirement of the prima facie case: She
was terminated. See Hartsell v. Duplex Products, Inc., 123 F.3d 766,
775 (4th Cir. 1997) (noting that termination is an adverse employment
action). Moreover, it is undisputed that Laughlin was terminated as a
result of removing the documents in question. To survive summary
judgment, therefore, Laughlin must have evidence that removing the
documents was a protected activity.

Laughlin asserts that she engaged in a protected activity when she
removed and copied the documents from her boss's desk and mailed
them to LaSauce because she was assisting in an investigation of
LaSauce's discrimination claim. Because the parties have not charac-
terized Laughlin's acts as theft, but rather merely as a breach of trust,3
_________________________________________________________________
3 The district court noted that the MWAA had not characterized
Laughlin's actions as theft and, as a result, found it unnecessary to deter-
mine whether the removal of documents constituted illegal activity. We

                     7
we must determine whether Laughlin's removal of documents is pro-
tected activity. Protected activities fall into two distinct categories:
participation or opposition. See 42 U.S.C.A.§ 2000e-3(a) (West
1994). An employer may not retaliate against an employee for partici-
pating in an ongoing investigation or proceeding under Title VII, nor
may the employer take adverse employment action against an
employee for opposing discriminatory practices in the workplace. See
id.

Activities that constitute participation are outlined in the statute:
(1) making a charge; (2) testifying; (3) assisting; or (4) participating
in any manner in an investigation, proceeding, or hearing under Title
VII. See 42 U.S.C.A. § 2000e-3(a). Participatory activities are vigor-
ously protected to ensure employees' continuing access to the EEOC
and the enforcement process. See Vasconcelos v. Meese, 907 F.2d
111, 113 (9th Cir. 1990) ("The purpose of section 2000e-3's partici-
pation clause is to protect the employee who utilizes the tools pro-
vided by Congress to protect his rights." (internal quotation marks
omitted)).

Laughlin urges us to conclude that the district court erred when it
did not characterize her removal of documents as participation in
LaSauce's EEO claim. She argues that her actions were taken to assist
LaSauce in her investigation. The evidence, however, does not sup-
port Laughlin's assertion. First, at the time the documents were
_________________________________________________________________

recognize, however, that such activity could be considered theft. See
O'Day v. McDonnell Douglas Helicopter Co., 79 F.3d 756, 761 (9th Cir.
1996) (describing similar activity as "stealing").

It is black letter law that illegal actions are not protected activity under
Title VII. See McDonnell Douglas Corp. v. Green , 411 U.S. 792, 803-04
(1973); Mozee v. Jeffboat, Inc., 746 F.2d 365, 374 (7th Cir. 1984); Silver
v. KCA, Inc., 586 F.2d 138, 141 (9th Cir. 1978); see also R. Bales, A New
Standard for Title VII Opposition Cases: Fitting the Personnel Manager
Double Standard into a Cognizable Framework, 35 S. Tex. L. Rev. 95,
107 (1994) (stating that every court to address the issue has held that ille-
gal acts are not protected under Title VII). Title VII simply does not con-
done illegal activity, even in furtherance of its laudable goals of
preventing workplace discrimination.

                     8
removed from the desk, LaSauce was not involved in any ongoing
investigation under Title VII. LaSauce had recently resigned from her
position at the MWAA and had not yet filed suit. Second, LaSauce
herself testified that she had not requested Laughlin's assistance and
that she was surprised to receive the documents in the mail. There
was quite simply no ongoing "investigation, proceeding or hearing"
in which Laughlin could participate at the time she discovered the
documents on her boss's desk. On that basis, we disagree with
Laughlin's contention that her case should have been analyzed under
the participation clause.4

Because Laughlin's actions are not cognizable as participation,
they must be oppositional or her case fails as a matter of law. To qual-
ify as opposition activity an employee need not engage in the formal
process of adjudicating a discrimination claim. See Armstrong v.
Index Journal Co., 647 F.2d 441, 448 (4th Cir. 1981). Opposition
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. See id. To
determine whether an employee has engaged in legitimate opposition
activity we employ a balancing test. See id. We "`balance the purpose
of the Act to protect persons engaging reasonably in activities oppos-
ing . . . discrimination, against Congress' equally manifest desire not
to tie the hands of employers in the objective selection and control of
personnel.'" Id. (quoting Hochstadt v. Worcester Found. for Experi-
mental Biology, 545 F.2d 222, 231 (1st Cir. 1976)).

The district court initially did not use this test, but rather deter-
mined that the circumstances of this case, in which an employee com-
_________________________________________________________________
4 The distinction between participation clause protection and opposition
clause protection is significant because the scope of protection is differ-
ent. Activities under the participation clause are essential to "`the
machinery set up by Title VII.'" Hashimoto v. Dalton, 118 F.3d 671, 680
(9th Cir. 1997) (quoting Silver v. KCA, Inc., 586 F.2d 138, 141 (9th Cir.
1978)), cert. denied, 1998 WL 245048 (U.S. May 18, 1998) (No. 97-
1644). As such, the scope of protection for activity falling under the par-
ticipation clause is broader than for activity falling under the opposition
clause. See Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304,
1312 (6th Cir. 1989).

                    9
mitted an egregious breach of confidentiality, mandated a rebuttable
presumption that the activity was not protected under Title VII.
Laughlin asserts that the district court erred by analyzing her case uti-
lizing this rebuttable presumption that activity that constitutes a
"breach of the employee's obligations of honest and faithful service"
is not protected under the opposition clause. (J.A. at 170.) We believe
that this Circuit's well-established balancing test provides an ade-
quate, workable framework for assessing opposition clause claims
and, thus, decline to adopt the district court's rationale. Setting aside
the fact that the balancing test already accounts for the concerns
expressed by the district court regarding the plaintiff's culpability in
this matter, we are bound by the precedent established by another
panel of this court. See Industrial Turnaround Corp. v. NLRB, 115
F.3d 248, 254 (4th Cir. 1997) (stating that one panel may not overrule
another). That determination, however, does not require reversal. The
district court applied the balancing test as an alternative analysis and
determined that Laughlin's claim failed as a matter of law.

When we apply the balancing test to the facts of this case, we eas-
ily conclude that the employer's interest in maintaining security and
confidentiality of sensitive personnel documents outweighs
Laughlin's interest in providing those documents to LaSauce.
Laughlin's reaction to the situation was disproportionate and unrea-
sonable under the circumstances. This court has recognized that com-
plaining to the employer, see Hopkins v. Baltimore Gas & Elec., Co.,
77 F.3d 745, 754 (1996); Armstrong, 647 F.2d at 448, and participat-
ing in an employer's informal grievance procedures, see Armstrong,
647 F.2d at 448, when done in a manner that is "not disruptive or dis-
orderly," id., constitute opposition activities that merit protection
under Title VII. Laughlin's drastic actions are not akin to the mea-
sured responses to employer discrimination that we have approved in
the past.

In contrast, the MWAA's decision to terminate Laughlin was
sound. The MWAA had a reasonable and significant interest in pre-
venting the dissemination of confidential personnel documents. See
Jefferies v. Harris County Community Action Ass'n , 615 F.2d 1025,
1036-37 (5th Cir. 1980) ("[Employer] clearly had a legitimate and
substantial interest in keeping its personnel records and agency docu-
ments confidential."). Laughlin had breached her employer's trust by

                     10
copying confidential material and sending it to an outside party. Title
VII was "not intended to immunize insubordinate, disruptive, or non-
productive behavior at work." Armstrong, 647 F.2d at 448. Because
the MWAA's strong interest in protecting sensitive records outweighs
Laughlin's interest in this instance, the district court was correct in
holding that Laughlin, as a matter of law, did not engage in protected
oppositional activity and, therefore, did not establish a prima facie
case of retaliatory discharge.

IV.

Laughlin further asserts that procedural irregularities below man-
date reversal. For the reasons that follow, we disagree.

Laughlin contends that the district court abused its discretion when
it converted the MWAA's motion to dismiss under Rule 12(b)(6) of
the Federal Rules of Civil Procedure into a motion for summary judg-
ment under Rule 56. Laughlin argues that she did not have adequate
notice that the motion was to be converted and that, as a result, she
was deprived of the discovery necessary to prove her case.

There are several problems with Laughlin's argument. First, the
MWAA's responsive pleading was captioned, "Motion to Dismiss, or,
in the alternative, Motion for Summary Judgment." (J.A. at 22.)
Based upon the caption alone, Laughlin was on notice that this motion
might be treated as one for summary judgment. Setting aside the cap-
tion for a moment, we note that the MWAA submitted affidavits and
other materials with its motion. When "matters outside the pleading
are presented to and not excluded by the court, the[12(b)(6)] motion
shall be treated as one for summary judgment and disposed of as pro-
vided in Rule 56." Fed. R. Civ. P. 12(b). Therefore, by operation of
the Federal Rules of Civil Procedure, Laughlin also should have been
on notice that the MWAA's motion could be considered by the court
to be a summary judgment motion. Further, Laughlin submitted a
"Memorandum in Opposition to Defendants' Motion to Dismiss, or
in the alternative, for Summary Judgment" to which she attached sup-
porting affidavits. On the basis of her own actions-- captioning her
memorandum and filing affidavits -- it appears that Laughlin had
actual notice that the motion could be disposed of as one for summary
judgment.

                    11
Laughlin asserts that, in the face of all of these indicia that the
motion could be treated as one for summary judgment, the district
court nevertheless had an obligation to formally notify her prior to the
hearing that the motion was definitely going to be treated as one for
summary judgment so she could obtain adequate discovery.

Laughlin's argument is without merit. A cursory glance at the Fed-
eral Rules of Civil Procedure, as well as Laughlin's own filings, make
clear that the motion before the court could be treated as a motion for
summary judgment. The district court, while it clearly has an obliga-
tion to notify parties regarding any court-instituted changes in the
pending proceedings, does not have an obligation to notify parties of
the obvious. Cf. Newton v. A.C. & S., Inc., 918 F.2d 1121, 1128 (3d
Cir. 1990) (noting that a court must provide reasonable notice and an
opportunity to be heard before imposing a fine); Galella v. Onassis,
487 F.2d 986, 997 (2d Cir. 1973) (requiring reasonable notice when
cases are consolidated for trial). An advocate has a responsibility to
do the necessary research regarding the procedural law of the forum
in which he litigates as part of the duty he owes his client. Cf. United
States v. Vargas, 585 F.2d 546, 547 (1st Cir. 1978) (stating that it was
the "responsibility of counsel to keep abreast of the law and to inform
the court of the correct state of the law").

Because appropriate notice was ample, Laughlin's attorney had the
responsibility, if he thought further discovery was necessary to ade-
quately oppose summary judgment, to make a motion under Rule
56(f). That rule provides:

          Should it appear from the affidavits of a party opposing the
          motion that the party cannot for reasons stated present by
          affidavit facts essential to justify the party's opposition, the
          court may refuse the application for judgment or may order
          a continuance to permit affidavits to be obtained or deposi-
          tions to be taken or discovery to be had or may make such
          other order as is just.

Fed. R. Civ. P. 56(f). Counsel failed to make such a motion. Cf.
Nguyen v. CNA Corp., 44 F.3d 234, 242 (4th Cir. 1995) (noting that
the appellate court will not overturn a district court's grant of sum-

                     12
mary judgment on bald assertions of inadequate discovery when the
party did not make an appropriate motion under Rule 56(f)).

As a result of the extensive notice to the parties that the MWAA's
responsive motion could be treated as one for summary judgment, the
district court did not abuse its discretion when it did not send formal
notice to the parties that it planned to construe the motion as one for
summary judgment.

V.

Because we determine that summary judgment on Laughlin's Title
VII retaliation claim was appropriate, and that the district court did
not abuse its discretion when it treated the MWAA's"Motion to Dis-
miss, or, in the alternative, for Summary Judgment," which was
accompanied by affidavits submitted by both parties, as a motion for
summary judgment, we affirm.

AFFIRMED

                    13
