                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 10-1734


WILLIAM HARDEN,

                  Plaintiff – Appellant,

           v.

WICOMICO COUNTY, MARYLAND; DOUGLAS C. DEVENYNS,

                  Defendants – Appellees,

           v.

JACK KAVANAGH, Director,

                  Movant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.   William M. Nickerson, Senior District
Judge. (1:09-cv-01123-WMN)


Argued:   May 10, 2011                      Decided:   June 23, 2011


Before WILKINSON and SHEDD, Circuit Judges, and David C. NORTON,
Chief United States District Judge for the District of South
Carolina, sitting by designation.


Affirmed by unpublished opinion. Judge Shedd wrote the opinion,
in which Judge Wilkinson and Judge Norton joined.


ARGUED: Robin Ringgold Cockey, COCKEY, BRENNAN & MALONEY, PC,
Salisbury, Maryland, for Appellant.    Kevin Bock Karpinski,
KARPINSKI, COLARESI & KARP, PA, Baltimore, Maryland, for
Appellees.    ON BRIEF: Ashley A. Bosché, COCKEY, BRENNAN &
MALONEY, PC, Salisbury, Maryland, for Appellant.  Victoria M.
Shearer, KARPINSKI, COLARESI & KARP, PA, Baltimore, Maryland,
for Appellees.


Unpublished opinions are not binding precedent in this circuit.




                                2
SHEDD, Circuit Judge:

       William Harden appeals the district court’s order granting

summary   judgment     in     favor    of    his   employer,   Wicomico   County,

Maryland (“the County”).              For the reasons set forth below, we

affirm.



                                            I.

       We view the evidence in the light most favorable to Harden,

the non-moving party.          Laber v. Harvey, 438 F.3d 404, 415 (4th

Cir.    2006)    (en    banc).         Harden      was   the   Internal   Affairs

Investigator at the Wicomico County Detention Center (“WCDC”).

In this position, he performed background checks on potential

employees, screened inmate grievances, performed drug and gang

investigations, and investigated security threats.                  In March of

2007, Reverend Parrot, the father of a WCDC inmate, told Harden

that the WCDC’s Director, Douglas Devenyns, was “sleeping with

his staff.”

       Based    upon   this    information,        Harden   interviewed   several

WCDC staff members and then approached County Executive Richard

Pollitt regarding Devenyns’ alleged sexual harassment of Jean

Murry, a former nurse for a WCDC medical vendor.                   At Pollitt’s

direction, Harden conducted an investigation into the alleged

sexual harassment and wrote a confidential report dated April 4,

2007 (“the Report”).           After reading the Report, Pollitt found

                                            3
nothing      improper      in    Devenyns’        actions.       On     March      6,   2008,

Pollitt formally instructed Harden to cease his investigation of

Devenyns.

        From May 2008 through July 2008, Harden engaged in a series

of actions that eventually led to his termination.                                 He posted

information from the Report on his internet blog and mailed a

copy of the Report to a member of County Council.                                    He also

failed      to    attend    a    training    workshop,         sent   an    insubordinate

email to the police, broke into Devenyns’ secretary’s desk, and

refused to cooperate with, or follow the instructions of, the

Chief of Security, who was his supervisor.                       In addition, in June

2008, Harden filed an EEOC complaint against both Devenyns and

the WCDC’s Deputy Director.

       On        August    12,      2008,     the       WCDC     fired        Harden      for

insubordination,           failure    to    obey    lawful      orders,       unauthorized

disclosure of confidential information, unauthorized use of or

damage to County property, and making malicious or irresponsible

statements to other officials.                Harden appealed his termination.

While       Harden’s      appeal     was    pending,     the     WCDC      abolished      the

position         of   Internal     Affairs    Investigator        because       of      budget

cuts.        In February 2009, following the hearing, the Wicomico

County      Personnel      Board     reinstated      Harden      because      it    believed

progressive, corrective discipline might have prevented Harden

from    committing        the    violations       for   which    he     was    terminated.

                                              4
Harden returned to work at the WCDC in March 2009 as a Support

Services Coordinator in charge of inmate grievances.                                 Although

Harden’s       pay       and    leave      remained        the     same,     he    had    fewer

supervisory powers and was reinstated as a Grade 18 employee

rather      than     a   Grade        20   employee       on   the   County’s      employment

scale.

       In    response          to    the   terms     of    his    reinstatement,         Harden

brought this case alleging causes of action for retaliation in

violation of 42 U.S.C. § 2000e-3(a) as well as interference with

his    First       Amendment          rights   to     petition       the    government      and

freedom of speech.                  The district court entered summary judgment

in favor of Wicomico County on all three counts after concluding

that       Harden    failed          to    establish       a     prima     facie   case    for

retaliation and failed to establish sufficient evidence of a

violation of his First Amendment rights. 1



                                               II.

       Summary judgment is appropriate “if the movant shows that

there is no genuine dispute as to any material fact and the

       1
       The district court held that, as a matter of law, Harden
did not have a cause of action for violation of his First
Amendment right to freedom of speech because Harden did not
engage in speech protected by the First Amendment.   Harden did
not address this issue in his appellate briefs.      Therefore,
Harden has abandoned that claim on appeal.       See Tucker v.
Waddell, 83 F.3d 688, 690 (4th Cir. 1996).



                                                5
movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a).      See also, Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986)     (finding     summary    judgment          appropriate     “after       adequate

time for discovery and upon motion, against a party who fails to

make   a    showing     sufficient     to    establish         the   existence        of   an

element     essential     to   that     party's        case[.]”).     We       review      the

district      court’s    order     granting          summary     judgment       de     novo.

Jennings v. Univ. of N.C., 482 F.3d 686, 694 (4th Cir. 2007) (en

banc).

       Harden argues that the district court erred in holding that

he   failed    to     establish    a    prima        facie   case    for       retaliation

pursuant to 42 U.S.C.A. § 2000e-3(a).                        To establish a prima

facie case for retaliation, Harden must prove: “(1) that [he]

engaged in protected activity, (2) that an adverse employment

action was taken against [him], and (3) that there was a causal

link between the protected activity and the adverse employment

action.”      Laughlin v. Metro. Washington Airports Auth., 149 F.3d

253, 258 (4th Cir. 1998).              The first element of a prima facie

case       encompasses     two     distinct            categories         of     protected

activities:         participation       by       a   complainant     in    a    Title      VII

proceeding,     and     engaging   in    oppositional          activities        to    bring

attention to an employer’s discriminatory activities.                                 Harden

alleges that the County retaliated against him for engaging in

both types of activity, but we agree with the district court

                                             6
that     Harden     fails          to    establish            a   prima         facie        case      for

retaliation under either category.

                                                   A.

       First, Harden alleges that he participated in a protected

activity.          “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.”

Laughlin,     149    F.3d           at   259.            Pursuant          to    this        statutory

definition,       Harden          established          the    first     element         of    a     prima

facie case — that he participated in a protected activity by

filing his June 2008 EEOC complaint.

       Harden has also produced sufficient facts to establish the

second    prong     of        a     prima     facie          case,     that      he     suffered         a

materially    adverse             action.        “[A]        plaintiff      must      show        that   a

reasonable    employee             would     have       found        the    challenged            action

materially adverse, which in this context means it well might

have dissuaded a reasonable worker from making or supporting a

charge of discrimination.”                   Burlington N. & Santa Fe Ry. Co. v.

White, 548 U.S. 53, 68 (2006)(internal citation marks omitted).

When Harden returned to work after suspension without pay, he

was    not   reinstated             as     the        Internal       Affairs          Investigator.

Although he continued to receive the same salary and leave time,

he had fewer supervisory powers and became a Grade 18 employee

                                                   7
rather than a Grade 20 employee.                       The Supreme Court has found

that reassignment to a less desirable job after a period of

suspension without pay can amount to material harm.                                   Id. at 70-

71.

       However, Harden failed to satisfy the third prong of the

prima facie analysis -- he did not provide evidence of a causal

link       between     his       filing     of       the     EEOC       complaint      and     his

reinstatement          to    a    less     desirable         job. 2          Harden     was     not

reassigned        to   his       prior    position         after    his      termination       was

reversed because the position of Internal Affairs Investigator

had    been       abolished        for     budgetary         reasons         during     Harden’s

suspension.            Thus,      Harden    was       placed       in    a    less     desirable

position      because       his    former    position         no      longer    existed,       not

because      of    retaliation.            Harden      has    simply         failed    to     offer

evidence sufficient to show the needed causal connection.




       2
       Because Harden filed his EEOC complaint anonymously, the
district court held that Harden failed to demonstrate a causal
link between the filing and Harden’s treatment.          However,
because there is evidence that some people at WCDC discovered
that Harden had filed the complaint, we affirm the district
court on the basis of its alternative finding -- that Harden’s
prior position of Internal Affairs Investigator no longer
existed.   See Jackson v. Kimel, 992 F.2d 1318, 1322 (4th Cir.
1993) (“In reviewing the grant of summary judgment, we can
affirm on any legal ground supported by the record and are not
limited to the grounds relied on by the district court.”).



                                                 8
                                               B.

        Second,    Harden     alleges         that        he    engaged       in    oppositional

activity intended to bring attention to what he believed to be

Devenyns’ sexual harassment of female employees when he mailed a

copy of the Report to a member of County Council and posted

information from the Report on his online blog.                                  “To qualify as

opposition activity an employee need not engage in the formal

process    of     adjudicating          a    discrimination               claim.         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.”       Laughlin,           149    F.3d      at      259       (internal       citations

omitted).         We   use    a    balancing         test       to    determine          whether   an

employee has engaged in protected oppositional activity.                                           We

“balance the       purpose        of    the    Act      to     protect       persons       engaging

reasonably in activities opposing . . . discrimination, against

Congress’       equally      manifest         desire       not       to    tie     the    hands    of

employers in the objective selection and control of personnel.”

Id. (internal citation marks omitted).

        Thus, in Laughlin, we found that an employee did not engage

in protected oppositional activity when she removed sensitive

personnel       documents         relating         to     another         employee        from     her

supervisor’s desk.           We explained:



                                                9
     When we apply the balancing test to the facts of this
     case, we easily conclude that the employer’s interest
     in   maintaining   security  and   confidentiality    of
     sensitive personnel documents outweighs Laughlin’s
     interests in providing those documents to LaSauce [the
     other employee]. Laughlin’s reaction to the situation
     was   disproportionate   and unreasonable    under   the
     circumstances. . . . The MWAA [the employer] had a
     reasonable and significant interest in preventing the
     dissemination of confidential personnel documents. . .
     .   Title    VII   was   not  intended    to    immunize
     insubordinate, disruptive, or nonproductive behavior
     at work.

Laughlin, 149 F.3d at 260 (internal citations omitted).

     As    in     Laughlin,       we   find    that    the    County’s   interest   in

protecting      confidential,          sensitive      records    outweighs   Harden’s

interest     in       exposing     Devenyns’       alleged      sexual   harassment.

Therefore,      Harden      did    not    engage      in     protected   oppositional

activity,       and    he   cannot       establish      a    prima   facie   case   of

retaliatory discharge for sending the Report to the member of

County Council or posting information from the Report online. 3



                                           III.

     For the foregoing reasons, we affirm the district court’s

grant of summary judgment in favor of the County.

                                                                             AFFIRMED



     3
        Harden also argues that the retaliation against him
interfered with his right to petition the government. However,
because there was no improper retaliation against Harden, this
claim also fails.



                                              10
