UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JANET GAYLE HARRIS,
Plaintiff-Appellant,

v.
                                                                      No. 98-1394
GENERAL MOTORS POWERTRAIN, a
Division of General Motors
Corporation,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Albert V. Bryan, Jr., Senior District Judge.
(CA-97-880-A)

Submitted: December 9, 1998

Decided: January 11, 1999

Before WILLIAMS, MICHAEL, and KING, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Sol Z. Rosen, Washington, D.C., for Appellant. Roger L. Gregory, M.
Janet Palmer, WILDER & GREGORY, Richmond, Virginia, for
Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Janet Harris appeals the district court's order dismissing her gender
discrimination claims under Title VII of the Civil Rights Act of 1964,
42 U.S.C.A. §§ 2000e -- 2000e-16 (West 1994 & Supp. 1998). For
the reasons set forth below, we affirm.

In 1981 Janet Harris began working for the General Motors
Powertrain ("GMP") division of General Motors as a production
worker, and consequently became a member of the International
Union, United Automobile, Aerospace and Agriculture Implement
Workers of America (the "Union" or "UAW"). In 1993 General
Motors entered into a national agreement with the UAW recognizing
the Union as the "exclusive representative of the production and
maintenance employees . . . for the purpose of collective bargaining
with respect to rates of pay, wages, hours of employment, or other
conditions of employment." In 1985 Harris transferred to a skilled
trades position in the maintenance department, and in September 1995
began working in the prototype division of the maintenance depart-
ment ("prototype"). At the time she was the only woman in prototype
and the only female employee of her job classification in the mainte-
nance department.

In October 1995 Harris filed a grievance with her Union based on
the disparity in the amount of overtime hours available between the
first and second shifts in prototype. Thereafter, a series of incidents
occurred that gave rise to this lawsuit. Specifically, fellow prototype
worker Mark Moats would frequently change the password on a work
computer without informing Harris. Harris' consequent inability to
access this computer interfered with her job performance, and her
complaints to supervisor Royden Grove and personnel director Kevin
Smith failed to remedy the situation. In November or December 1995,
Harris found a sheet of paper on a bulletin board in the computer

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room that said "PMS," and something to the effect of, "are you suffer-
ing from PMS, there is help at your local psychiatrist." She under-
stood the letters PMS to stand for premenstrual syndrome. The sign
remained on the bulletin board for approximately one week. Around
this same time a coworker left various buttons in the computer room
that had messages such as: "Too bad ignorance isn't painful," and
"The difference between genius and stupidity is that EVEN genius
has its limits."

On January 18, 1996, Moats changed the computer password to
"PMS." Harris immediately complained to general foreman Bruce
Wheeler. On January 23rd, GMP made the decision to transfer Harris
from prototype back to the maintenance shop. On January 23rd or
24th Harris and a union representative met with Grove to complain
about the password and the overall hostile working environment in
the prototype work area. On January 26th the offensive password was
removed. On January 28, 1996, Harris was transferred from proto-
type.

In February and early March 1996, the UAW filed a series of
grievances on Harris' behalf challenging her transfer from prototype
and alleging sexual harassment and a hostile work environment. In
February 1997, UAW and GMP reached a settlement resolving Har-
ris' overtime grievances. The settlement agreement awarded Harris
140 hours pay amounting to approximately $2900, and recognized
that GMP had not discriminated against Harris. Harris appealed the
settlement, and in June 1997 filed this Title VII action.

We review an award of summary judgment de novo. See Higgins
v. E. I. DuPont de Nemours & Co., 863 F.2d 1162, 1167 (4th Cir.
1988). Summary judgment is appropriate when the record taken as a
whole could not lead a rational trier of fact to find for the non-moving
party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52
(1986). Although summary judgment disposition should be used spar-
ingly in employment discrimination cases, it is appropriate when there
is no genuine dispute of material fact. See Ballinger v. North Carolina
Agric. Extension Serv., 815 F.2d 1001, 1004-05 (4th Cir. 1987).

Initially, we agree with Harris that the settlement between the
UAW and GMP addressing her claims of overtime disparity does not

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foreclose her from reasserting the claims in this action. This court is
bound to enforce any legally negotiated arbitration clause that obli-
gates parties to submit claims under Title VII to arbitration. See
Brown v. T.W.A., 127 F.3d 337, 340 (4th Cir. 1997). This rule applies
to the arbitration provisions of a collective bargaining agreement. See
Austin v. Owens-Brockway Glass Container, Inc., 78 F.3d 875, 885
(4th Cir. 1996). However, an employee's contractual rights under a
collective bargaining agreement are distinct from an employee's stat-
utory Title VII rights. See Brown, 127 F.3d at 340; see also Alexander
v. Gardner-Denver Co., 415 U.S. 36, 49-50 (1974). Therefore, even
if a collective bargaining agreement dictates arbitration as the exclu-
sive remedy to resolve claims that the contract has been applied
unfairly on the basis of a protected statutory classification, an
employee may still bring an independent Title VII action based on the
same facts if the collective bargaining agreement does not provide for
arbitration as the exclusive remedy to resolve an employee's statutory
Title VII rights. See Alexander, 425 U.S. at 53-54; see also Brown,
127 F.3d at 341-42. Moreover, a union-negotiated waiver of the right
to pursue statutory claims in a federal forum must be "particularly
clear." Wright v. Universal Maritime Serv. Corp., 119 S.Ct. 391
(1998).

Although the labor agreement at issue in this case prohibits conduct
similar to that protected by Title VII, it states only that "the provisions
of this Agreement" will be applied without discrimination based on
sex. The agreement does not purport to submit any noncontract-based
dispute or any statutory dispute to arbitration. Brown, 127 F.3d at
341. In addition, the agreement states that "[t]he grievance and arbi-
tration procedure shall be the exclusive contractual procedure for
remedying such discrimination claims." This language further sug-
gests that the agreement does not bar an employee from bringing an
action in federal court to enforce the full scope of her statutory rights.
Accordingly, Harris' Title VII claims were properly before the district
court.

Harris asserts that GMP denied her overtime when she worked in
prototype from September 1995 through January 1996 and that as a
result of her transfer from prototype and a job restructuring that
occurred in June 1996 she was further denied overtime opportunities.
In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800-04 (1973),

                     4
the Supreme Court established the familiar "order and allocation of
proof" for Title VII cases in which the plaintiff alleges disparate treat-
ment. First, the plaintiff must establish a prima facie case of discrimi-
nation. Id. at 802. To establish a prima facie case, Harris must
demonstrate that (1) she belongs to a protected class; (2) she was
qualified for her job; (3) she suffered an adverse employment action;
and (4) she was treated differently from similarly situated employees.
Id. Once a prima facie case is presented, the defendant must then
articulate some legitimate nondiscriminatory reason for the disparate
treatment. Id. The articulated nondiscriminatory explanation is "pre-
sumptively valid," and the plaintiff must then demonstrate that the
explanation is pretextual and "meet the ultimate burden of proving
intentional discrimination" by a preponderance of the evidence.
Moore v. City of Charlotte, 754 F.2d 1100, 1106 (4th Cir. 1985). The
burden of proof never shifts from the plaintiff in a Title VII case. St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-07 (1993).

We find that Harris has failed to carry her ultimate burden of prov-
ing that gender discrimination played a role in GMP's decisions
affecting overtime. Harris offers no evidence other than the "PMS"
password incident and the "PMS" sign in support of her claims that
any denial of overtime was gender based. It is undisputed that GMP
awarded Moats and Knight more overtime opportunities than Harris
from September 1995 through January 1996. During this period, how-
ever, Harris' fellow second-shift worker Phil Morton was also denied
overtime, thereby calling into question Harris' assertion that the deci-
sion to give the first shift more overtime was gender based. In addi-
tion, GMP put forth unrefuted business reasons documenting the
impracticability of equalizing the amount of overtime between shifts
within the prototype equalization group. Finally, the record contains
no evidence other than Harris' bare assertion that the June 1996
restructuring, which presumably affected not only Harris but her fel-
low prototype coworkers, was motivated by an intent to discriminate
against Harris because she was a woman.*
_________________________________________________________________
*In her brief Harris alleges she was unfairly denied overtime during
her temporary transfer back to prototype in March 1996. However, this
incident was not cited in Harris' complaint and first appeared in her affi-
davit accompanying her opposition motion to Defendant's motion for

                     5
Unfortunately for Harris, although the record suggests that GMP
made efforts to satisfy Moats' and Knight's requests for more over-
time, it is devoid of evidence showing that Harris' gender was a factor
affecting GMP's personnel actions. The two sexually offensive inci-
dents Harris cites in support of her claim that gender discrimination
played a role in GMP's award of overtime opportunities do not enable
Harris to meet her ultimate burden of proving intentional discrimina-
tion in violation of Title VII.

Harris next claims that her transfer from prototype was in retalia-
tion for her complaints about sexual harassment and a hostile work
environment. To establish a prima facie case of retaliation Harris
must show: (1) that she engaged in protected activity or opposed a
practice made unlawful by Title VII, (2) that the employer took
adverse employment actions against her, and (3) that there was a
causal connection between the protected activity and the adverse
action. See Ross v. Communications Satellite Corp., 759 F.2d 355,
365 (4th Cir. 1985). Title VII was designed to address ultimate
employment decisions, not to address every decision made by
employers that arguably might have some tangential effect upon those
ultimate decisions. See Page v. Bolger, 645 F.2d 227, 233 (4th Cir.
1981) (en banc). The alleged adverse employment actions must be a
"material[ ] adverse change in the terms and conditions of employ-
ment [and] must be more disruptive than a mere inconvenience or an
alteration of job responsibilities." Crady v. Liberty Nat'l Bank &
Trust Co., 993 F.2d 132, 136 (7th Cir. 1993).

Harris' placement in prototype merely constituted a new job
assignment, and she did not sustain a demotion or pay cut as a result
of her transfer back to the maintenance department. Therefore, we
find that Harris' transfer did not give rise to the level of adverse
employment actions made actionable under Title VII.
_________________________________________________________________

summary judgment. The record contains no evidence surrounding the
details of this allegation, and Harris failed to allege in her affidavit that
the lack of overtime available to her during this period was a product of
gender discrimination. Therefore, this claim cannot withstand Defen-
dant's motion for summary judgment.

                     6
Sexual harassment which creates a hostile work environment is
actionable under Title VII because it amounts to discrimination in the
conditions of employment. See Meritor Sav. Bank, FSB v. Vinson,
477 U.S. 57, 63-68 (1986). To establish her hostile work environment
claim, Harris must prove that: (1) the conduct in question was unwel-
come; (2) the harassment was based on sex; (3) the harassment was
sufficiently severe or pervasive to create an abusive working environ-
ment; and (4) there is some basis for imposing liability on the
employer. See Swentek v. USAir, Inc., 830 F.2d 552, 557 (4th Cir.
1987). Harassment is actionable only if it is so severe or pervasive so
as to "alter the conditions of [the victim's] employment and create an
abusive working environment." Vinson, 477 U.S. at 67 (internal quo-
tation marks omitted) (alteration in original). In order to determine
whether sexually offensive conduct was sufficiently severe or perva-
sive to bring it within Title VII's purview, we examine the totality of
the circumstances, including "the frequency of the discriminatory
conduct; its severity; whether it is physically threatening or humiliat-
ing, or a mere offensive utterance; and whether it unreasonably inter-
feres with an employee's work performance." Harris, 510 U.S. at 22.

The conduct Harris cites in support of her hostile work environ-
ment claim is the placement in the computer room of various buttons
and a makeshift sign with the words "PMS," and the alteration of the
computer password to "PMS." Both the sign and the password
remained for approximately one week. The buttons had no sexual
connotations, and until the other incidents, Harris did not even believe
that they were directed at her. Although these events offended Harris
and delayed her ability to perform certain job functions, we agree
with the district court that they were not severe or pervasive enough
to state a viable claim under Title VII.

We therefore affirm the district court's order granting Defendants
summary judgment on Harris' Title VII claims and deny her motion
for summary reversal or remand. 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

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