                                     PUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                     No. 18-1507


MATTHEW PERKINS,

            Plaintiff - Appellant,

v.

INTERNATIONAL PAPER COMPANY,

            Defendant - Appellee.


Appeal from the United States District Court for the District of South Carolina, at
Columbia. Terry L. Wooten, Senior District Judge. (3:16-cv-00172-TLW)


Argued: May 9, 2019                                       Decided: August 27, 2019


Before NIEMEYER, KEENAN, and QUATTLEBAUM, Circuit Judges.


Affirmed by published opinion. Judge Quattlebaum wrote the opinion, in which Judge
Niemeyer and Judge Keenan joined.


ARGUED: Shannon Marie Polvi, CROMER BABB PORTER & HICKS, LLC, Columbia,
South Carolina, for Appellant. Matthew J. Gilley, FORD & HARRISON LLP,
Spartanburg, South Carolina, for Appellee. ON BRIEF: Kristin S. Gray, FORD &
HARRISON LLP, Spartanburg, South Carolina, for Appellee.
QUATTLEBAUM, Circuit Judge:

       Alleging race-based discrimination, Matthew Perkins brought claims for: (1)

disparate treatment, (2) hostile work environment, (3) constructive discharge and (4)

retaliation against International Paper Company (“IPC”) under Title VII of the Civil Rights

Act of 1965, 42 U.S.C. §§ 2000e, et seq., (“Title VII”). 1 After discovery, IPC moved for

summary judgment. The district court adopted the magistrate judge’s recommendation to

grant IPC’s motion concluding there were no genuine issues of material fact as to any of

his claims. Perkins now appeals that order of summary judgment. After a de novo review,

we affirm.



                                             I.

       In 1984, Perkins, an African American male, began working as a technician at what

is now IPC’s Eastover paper mill (the “Eastover Mill”). 2 Perkins continued working there

until 2014, when he retired. Perkins alleges in his Amended Complaint that, during his time

at IPC, he experienced race-based discrimination. Our review of the record indicates that


       1
           In the amended complaint, Perkins includes hostile work environment,
constructive discharge and disparate treatment within his Title VII discrimination cause of
action. However, because the magistrate judge, the district court and the parties treated the
disparate treatment, hostile work environment and constructive discharge as separate
causes of action, we will do so as well. Perkins also brought a separate cause of action for
retaliation.
       2
         The mill, which produces paper and pulp, is located in the small South Carolina
town of Eastover. Founded in 1880, Eastover is twenty miles southeast of South Carolina’s
capitol city of Columbia, near the convergence of the Wateree and Congaree Rivers. In
fact, the name Eastover was selected because the town was “over to the east” of the
Congaree River.

                                             2
Perkins’ evidence of this alleged discrimination falls into three categories: (1) mistreatment

in various ways compared to white employees; (2) improper denials of requests for

promotions; and (3) racially offensive conduct and statements at work.

       In reviewing the details of these categories, we begin with Perkins’ allegations of

mistreatment compared to white employees. Perkins testified that in its program to provide

financial assistance to employees who pursued higher education, IPC increased the amount

of assistance several years after his benefits had been paid. Perkins said it was unfair for

IPC to deny his 2007 request for retroactive payment of the new amount when it approved

the new amount for current participants, including white employees. Perkins also testified

that in his department’s 2007 ranking of the technicians for feedback purposes, most of the

technicians ranked near the bottom, including himself, were African Americans and

females. Additionally, Perkins said the assignment of employees to the twelve-hour shift

on the “wet end” of a machine and the shorter shift on the “dry end” of the same machine,

which began in 2010, was unfair to African Americans. Perkins testified this practice

stopped after he reported it. Last, Perkins testified that after the implementation of a policy

monitoring overtime in 2013, he was questioned about the reasons he was working

overtime, but never saw his white co-workers asked the same questions. Perkins’ co-

workers also testified that the IPC workplace rules and practices were enforced more

stringently against African American employees than white employees and that some white

employees did not talk to and otherwise shunned African American employees.

       Perkins’ second category of evidence involves the denials of requests for

promotions. Although he offered minimal detail on the race or the qualifications of the


                                              3
employees who received the positions, Perkins testified that, between 2007 and 2013, he

was passed over for several promotion opportunities. Perkins’ co-workers also said that

white employees were promoted more often than African American employees.

       The record reveals a third category, racially offensive conduct and statements.

Perkins acknowledged no such statements were made to him or even in his presence while

he was at IPC. But Perkins heard second-hand about a white employee making and wearing

a KKK hat at work in 2006. Also, several years before 2014, he was told that an African

American female employee overheard a white employee, when given a work assignment,

complain that he was being asked to work like a n*****.

       In addition, Perkins’ co-workers testified about incidents about which Perkins had

no knowledge. An African American female co-employee testified she was told by other

technicians that a white male technician referred to her on multiple occasions as a black

b***h and a n*****. Two other African American co-employees testified that an African

American male employee told them of an instance where a white male employee told the

African American male he had come through the “white door” and needed to go back out

of the building and enter through the “black door.” The co-workers did not testify as to

when these comments were made.

       Against this backdrop, Perkins testified about his departure from IPC. After

approximately 30 years at IPC, in the Spring of 2014, Perkins began considering

retirement. He also explored other employment options. Specifically, Perkins applied for

employment as a full-time case worker with a non-profit organization for which he had

volunteered in the past.


                                           4
       Later, while still at IPC, one of the managers in his department accused Perkins of

failing to complete his job responsibilities the prior week. According to Perkins, the

uncompleted work was another worker’s responsibility, not his. Perkins testified that

because of this incident, he felt IPC would get rid of him if he did not leave. While he did

not officially retire until two and one-half months later, Perkins never returned to work.

During the time period from the day he stopped working until his retirement, Perkins

received accumulated vacation and holiday leave pay. Just three days after the accusation

about his job responsibilities, Perkins began full-time employment with the non-profit.

       After he stopped working at IPC, an IPC human resources manager conducted

Perkins’ exit interview. In the interview, Perkins said that his job at IPC was the best job

he ever had, but the opportunity came at a significant price. He reported the treatment

outlined above. Perkins also said educated minorities cannot make it in his former

department. He claimed that his department manager covered up for and protected another

employee, was a hot head, did not listen, never gave him any feedback and did not follow

procedures. Perkins said no one at IPC thanked him for working during an ice storm.

Perkins claimed he left IPC because he had no ability to provide a positive influence, was

devalued, could not sleep at night, and experienced racism and prejudice. Perkins added

that high blood pressure and shoulder pain were additional reasons he left.

       Perkins later filed a complaint with IPC’s Ethics Helpline and met with the Eastover

Mill Manager. In both the complaint and meeting, Perkins repeated the allegations of




                                             5
discrimination he reported in his exit interview. 3 On November 1, 2014, Perkins officially

retired from IPC.

       On January 8, 2015, Perkins filed a charge of discrimination with the South Carolina

Humans Affairs Commission (“SCHAC”) and the Equal Employment Opportunity

Commission (“EEOC”) alleging race discrimination, retaliation and disparate treatment.

Perkins alleged that from April 1, 2014, through November 1, 2014, he was subjected to

disparate terms and conditions. After receiving his right-to-sue letter, Perkins filed a

lawsuit against IPC in state court. IPC removed the case to federal court and, after

discovery, moved for summary judgment. The magistrate judge recommended that

summary judgment be granted as to all of Perkins’ claims. The district court adopted the

recommendation granting IPC’s motion for summary judgment. Perkins timely appealed.



                                            II.

       This Court “review[s] the district court’s grant of summary judgment de novo,

applying the same legal standards as the district court and viewing the facts and inferences

drawn from the facts in the light most favorable to . . . the nonmoving party.” Evans v.

Techs. Applications & Serv. Co., 80 F.3d 954, 958 (4th Cir. 1996). Summary judgment

should be granted when “there is no genuine dispute as to any material fact and the movant



       3
         As a result of Perkins’ Helpline complaint, IPC opened an investigation into
discrimination at the Eastover Mill and interviewed Perkins along with eleven other
employees. After finding no evidence substantiating Perkins’ claims, IPC closed the
investigation.


                                             6
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). When a party fails to

establish the existence of an element essential to that party’s case, there is no genuine issue

of material fact and the movant is entitled to a judgment as a matter of law. Celotex Corp.

v. Catrett, 477 U.S. 317, 322–23 (1986). To avoid summary judgment, the opposing party

must set forth specific facts showing that there is a genuine issue for trial. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If there are genuine issues of material fact,

a court should not weigh the evidence. Id. at 249. But “where the record taken as a whole

could not lead a rational trier of fact to find for the non-moving party, disposition by

summary judgment is appropriate.” Teamsters Joint Council No. 83 v. Centra, Inc., 947

F.2d 115, 119 (4th Cir. 1991).



                                             III.

       All of Perkins’ claims are based on Title VII. Title VII prohibits discrimination

“against any individual with respect to his compensation, terms, conditions, or privileges

of employment, because of such individual’s race . . . .” 42 U.S.C. § 2000e-2. This

provision is sometimes referred to as the “anti-discrimination” provision. In a separate

section, Title VII outlaws discrimination based an employee’s opposition to conduct made

unlawful by Title VII or participation in any Title VII investigation, proceeding or hearing.

42 U.S.C.A. § 2000e-3. This provision is sometimes referred to as the “anti-retaliation”




                                              7
provision. Perkins’ claims for disparate treatment, hostile work environment and

constructive discharge fall under § 2000e-2. His retaliation claim falls under § 2000e-3. 4

       On appeal, Perkins argues the district court erred in granting IPC summary judgment

on each of his claims. With respect to his disparate treatment claim, Perkins argues the

district court did not even address this claim, but instead improperly relied on the

magistrate judge’s decision on timeliness. With respect to the hostile work environment

claim, Perkins argues he provided sufficient evidence of a severe or pervasive environment.

With respect to his constructive discharge claim, Perkins appears to argue that the same

facts that establish a hostile work environment establish a constructive discharge. Last,

regarding his retaliation claim, Perkins argues that, much like his disparate treatment claim,

the district court largely ignored the claim and granted summary judgment with no legal

reasoning. We address these arguments in turn.


       4
         A plaintiff has two potential avenues to avoid summary judgment in a Title VII
discrimination claim. Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 318 (4th
Cir. 2005). He may, under what has been referred to as the “mixed-motive” framework,
present direct or circumstantial evidence that creates a genuine issue of material fact as to
whether an impermissible factor such as race solely or partially motivated the employer’s
adverse employment decision. Id. Or he may proceed under the McDonnell Douglas
pretext framework. Id. The same is true for a Title VII retaliation claim. Foster v. Univ. of
Maryland-E. Shore, 787 F.3d 243, 249 (4th Cir. 2015).
       Here, the district court appears to have only applied the McDonnell Douglas pretext
framework. Perkins claims the district court erred in doing so because he presented
evidence of both avenues of proof. Perkins has a point. But any mistake by the district court
on this issue makes no difference in the outcome of this appeal because Perkins failed to
present direct or circumstantial evidence that created a genuine issue of material fact as to
whether race solely or partially motivated any alleged adverse employment actions by IPC.
The evidentiary shortcomings that justify summary judgment under the McDonnell
Douglas pretext framework lead to the same result under the “mixed-motive” framework.
With that clarification, we will address Perkins’ disparate treatment and retaliation claims
using the requirements of establishing a prima facie claim.

                                              8
                                            A.

         We begin with Perkins’ disparate treatment claim. In an attempt to prove this claim,

Perkins said that from 2007 to 2013, IPC inappropriately denied him several promotions,

overtime hours, additional educational benefits and a training opportunity. Perkins also

testified that in 2011, IPC gave him an inaccurate evaluation. Perkins further said that he

did not receive annual reviews, that he did not have a fair opportunity to compete for

manager positions and that he experienced daily and consistent hostile treatment.

         Perkins claims this evidence satisfies his burden for a disparate treatment claim and

the district court erred by effectively ignoring the claim. It is true that the district court’s

order contains no independent discussion on the disparate treatment claim. However, it

finds that “Plaintiff’s objections to the Report did not overcome the Magistrate Judge’s

analysis which cites to the facts and evidence in the record, and the relevant caselaw.” J.A.

62. Regardless of the level of discussion in the district court’s order, we affirm the district

court because, based on our de novo review, the evidence offered by Perkins fails to create

a genuine issue of material fact.

         “Disparate treatment occurs when an employer treats certain people less favorably

than others on the basis of a protected classification such as race.” Carter v. Ball, 33 F.3d

450, 456 n.7 (4th Cir. 1994). To establish a prima facie case of disparate treatment, Perkins

must show: (1) membership in a protected class; (2) satisfactory work performance; (3)

adverse employment action; and (4) different treatment from similarly situated employees

outside the protected class. Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir.

2010).


                                                 9
       At the outset, claims for disparate treatment should be dismissed if not timely filed.

Perkins, having filed a Charge of Discrimination with SCHAC and the EEOC on January

8, 2015, may proceed and recover only on deliberate discrimination that occurred within

the 300 days of filing his charge. See Lewis v. Chicago, 560 U.S. 205, 210, 214–15 (2010);

National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002). Therefore,

Perkins’ disparate treatment claims involving conduct that occurred more than 300 days

prior to January 8, 2015—or before March 14, 2014—are untimely. Based on his own

testimony, Perkins’ claims of disparate treatment for being denied positions, overtime,

additional educational benefits and training all took place between 2007 and 2013, and thus

are untimely.

      In contrast, Perkins’ claim that he was denied annual reviews appears to be timely.

However, in a disparate treatment claim, a plaintiff must show discrimination that

adversely affects the terms, conditions or benefits of employment. Coleman, 626 F.3d at

190. Perkins has not offered evidence indicating IPC’s failure to give him annual reviews

adversely affected the terms, benefits and conditions of his employment. See Roberts v.

Saint Agnes Hosp., No. GJH-13-3475, 2015 WL 3932398, at *8 (D. Md. June 25, 2015)

aff’d sub nom. Roberts v. Saint Agnes Hosp./Ascension Health, 622 F. App’x 255 (4th Cir.

2015). Thus, Perkins’ claim about annual reviews fails the third requirement of a disparate

treatment claim.

       Perkins’ claim that the hostile treatment he received at IPC constitutes an adverse

employment action also appears timely. But despite that, the magistrate judge’s report,

which the district court adopted, questioned whether hostile treatment could qualify as an


                                             10
adverse employment action. Noting that Perkins offered no authority that it could, the

report considered Perkins’ claims of hostile treatment not as an adverse employment action

under his disparate treatment claim, but instead under his hostile work environment claim.

Under these circumstances, we agree with the district court. And even if hostile treatment

could qualify as an adverse employment action, this claim would fail as a matter of law

because we determine today that Perkins failed to offer evidence to create a genuine issue

of material fact on his hostile work environment claim.

       For the foregoing reasons, the district court properly granted summary judgment on

his claim for disparate treatment.

                                            B.

                                            1.

       We next turn to Perkins’ race-based hostile work environment claim. Perkins asserts

this claim under 42 U.S.C. § 2000e-2, the anti-discrimination provision of Title VII. To

establish a prima facie Title VII claim for a hostile work environment based on race,

Perkins must demonstrate: (1) he experienced unwelcome harassment; (2) the harassment

was based on his race; (3) the harassment was sufficiently severe or pervasive to alter the

conditions of employment and create an abusive atmosphere; and (4) there is some basis

for imposing liability on the employer. See Bass v. E.I. DuPont de Nemours & Co., 324

F.3d 761, 765 (4th Cir. 2003).

       The critical issue for us on appeal is the severe and pervasive element. To establish

that race-based harassment was sufficiently severe or pervasive under Title VII, Perkins

“must show that a reasonable jury could find that the . . . race-based harassment was so


                                            11
severe or pervasive as to alter the conditions of [Perkins’] employment and create an

abusive or hostile atmosphere.” E.E.O.C. v. Cent. Wholesalers, Inc., 573 F.3d 167, 175

(4th Cir. 2009). The severe or pervasive element has both a subjective and objective

component. Id. Perkins must show that he “did perceive, and a reasonable person would

perceive, the environment to be abusive or hostile.” Id.

       IPC does not dispute that a reasonable jury could find Perkins subjectively perceived

his environment to be abusive or hostile. Our focus then on appeal is whether a reasonable

jury could conclude that an objective reasonable person would perceive Perkins’ work

environment to be hostile or abusive.

       “[W]hen determining whether the harassing conduct was objectively severe or

pervasive, we must look at all the circumstances, including the frequency of the

discriminatory conduct; its severity; whether it is physically threatening or humiliating, or

a mere offensive utterance; and whether it unreasonably interferes with an employee’s

work performance.” E.E.O.C. v. Sunbelt Rentals, Inc., 521 F.3d 306, 315 (4th Cir. 2008)

(internal quotation marks omitted). “[P]laintiffs must clear a high bar in order to satisfy the

[objective] severe or pervasive test.” Sunbelt, 521 F.3d at 315. “[I]ncidents that would

objectively give rise to bruised or wounded feelings will not on that account satisfy the

severe or pervasive standard.” Id. “[R]ude treatment by [coworkers], callous behavior by

[one’s] superiors, or a routine difference of opinion and personality conflict with [one’s]

supervisor, are not actionable under Title VII.” Id. at 315–16 (internal quotation marks and

citations omitted).




                                              12
       The Supreme Court has also reinforced the steep requirements of a hostile work

environment claim. “[S]imple teasing, offhand comments, and isolated incidents (unless

extremely serious) will not amount to discriminatory changes in the terms and conditions

of employment.” Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (internal

quotation marks and citations omitted). The “‘mere utterance of an . . . epithet which

engenders offensive feelings in an employee’ does not sufficiently affect the conditions of

employment to implicate Title VII.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, (1993)

(quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)). The “standards for

judging hostility are sufficiently demanding to ensure that Title VII does not become a

‘general civility code.’” Faragher, 524 U.S. at 788 (quoting Oncale v. Sundowner Offshore

Services, Inc., 523 U.S. 75, 80 (1998)).

                                            2.

       We now turn back to the evidence offered by Perkins in support of his hostile work

environment claim. We will first consider the evidence Perkins offered that he and other

African American employees were mistreated compared to white IPC employees and

unfairly denied promotions. We will then consider evidence of racially offensive conduct

and statements made to and in the presence of other IPC employees that Perkins knew

about while at IPC. We will last consider racially offensive statements made to other IPC

employees that Perkins neither witnessed nor was aware.

                                            a.

       Regarding mistreatment compared to white employees, Perkins testified IPC denied

his request for retroactive application of the new amount of education benefits when it


                                            13
approved the new amount for current participants, including white employees. Perkins

testified that most of the employees at the bottom of his department’s list ranking

technicians were African Americans and females. Perkins also testified the assignment of

employees to the twelve-hour shift on one portion of a machine and to the shorter shift for

a different job on that same machine was unfair to African Americans. Last, Perkins

testified he never saw white employees questioned about overtime like he was. Other IPC

employees testified that African American employees were treated less favorably than

white employees in that the IPC workplace rules and practices were enforced more

stringently against African American employees than white employees and that some white

employees did not talk to and otherwise shunned African American employees. In addition,

Perkins testified that he was passed over for several promotion requests. He and other IPC

employees also testified more generally that white employees were promoted more often

than African American employees.

       The handful of incidents Perkins described occurred between 2007 and 2013. Those

incidents, while no doubt serious to Perkins, from an objective perspective cannot

reasonably be described as either frequent, physically threatening or humiliating. Further,

Perkins does not allege the incidents interfered with his ability to perform his job. And the

evidence offered by Perkins’ co-workers is of the same character. Thus, considering the

evidence in the light most favorable to Perkins, we agree with the district court that this




                                             14
evidence does not rise to the level of severity and pervasiveness required by Supreme Court

and Fourth Circuit precedent to constitute a hostile workplace. 5

                                             b.

       Next, looking at the evidence of racially offensive conduct and statements of which

Perkins was aware, Perkins’ Amended Complaint does not refer to these incidents.

Likewise, they were not mentioned by the magistrate judge or the district court and

received scant attention by the parties in their briefs. But this evidence is plainly in the

record and was addressed by the parties at oral argument without any waiver or forfeiture

objection. While not required to do so, we feel it is appropriate to address this alleged

evidence here.

       Perkins is clear that no one made racial slurs or racially offensive statements to him.

But while at IPC, Perkins learned of two incidents of racially offensive conduct by white

co-workers. While this Court has held that the primary focus in the hostile work

environment analysis is on the plaintiff’s experience, evidence of how others were treated

in the same workplace can be relevant to a hostile work environment claim. E.E.O.C. v.

Sunbelt, 521 F.3d at 317; Ziskie v. Mineta, 547 F.3d 220, 225 (4th Cir. 2008); Jennings v.

University of North Carolina, 482 F.3d 686, 692 n.1, 697–98 (4th Cir. 2007); Spriggs v.

Diamond Auto Glass, 242 F.3d 179, 184 (4th Cir. 2001). Further, the fact that an employee



       5
         Unlike claims for disparate treatment and retaliation, the continuing violation
doctrine applies to a hostile work environment claim. See Morgan, 536 U.S. at 117; see
also Guessous v. Fairview Prop. Investments, LLC, 828 F.3d 208, 223, n.5 (4th Cir. 2016).
Thus, the timeliness issues discussed regarding Perkins’ disparate treatment and retaliation
claims do not apply here.

                                             15
does not witness statements made to third parties does not bar their consideration. Jennings,

482 F.3d at 692 n.1, 697–98. This makes sense because the environment an employee

experiences would, in addition to his own treatment, include information he obtains about

similar treatment of others even if he did not witness that treatment.

       Based on our precedent, the evidence of racially offensive conduct that Perkins

heard about second-hand should not be disregarded simply because he did not witness it.

Despite that, this evidence does not create a genuine issue of material fact on Perkins’

hostile work environment claim because the statements are remote in time relative to each

other and to Perkins’ decision to leave IPC. In Hopkins v. Baltimore Gas & Elec. Co., 77

F.3d 745, 753–754 (4th Cir. 1996), we held that a few sexually discriminatory incidents

“occurring intermittently over a seven-year period, with gaps between incidents” were not

sufficiently pervasive to be actionable. See also Belton v. City of Charlotte, 175 F. App’x

641, 656 (4th Cir. 2006) (holding that a few racially discriminatory incidents, including

one use of the n-word, were temporally remote from each other, were not sufficiently

severe or pervasive to be actionable). Here, Perkins learned of just two incidents during the

many years he worked at IPC. Moreover, the two incidents, one in 2006 and the other

several years before 2014, took place several years apart and years before Perkins decided

to retire. Without condoning it in any way, this conduct is too remote to be pervasive, and,

thus, insufficient to create a genuine issue of material fact.

                                              c.

       Likewise, the racially offensive statements to co-workers that Perkins did not know

about do not create a genuine issue of material fact. Our Court’s precedent indicates that


                                              16
experiences of third parties about which a plaintiff was unaware should not be considered

in evaluating a hostile work environment’s severe or pervasive requirement. In King v.

McMillan, 594 F.3d 301, 306, 310 (4th Cir 2010), we affirmed the district court’s

admission of the testimony of two female employees, other than the plaintiff, who

described sexual harassment by the same sheriff employer. Critical here, in explaining our

decision, we noted: “the [district] court took the precaution of instructing the jury that the

testimony of others was relevant to the ‘severe or pervasive’ element only if King ‘was

aware of [the harassment described in the testimony] during the course of her

employment.’” Id. at 310 (emphasis added); see also Bunch v. Shalala, No. 94–2269, 1995

WL 564385, at *7 (4th Cir. Sept. 25, 1995) (concluding testimony by witness who

experienced sexual harassment but did not disclose it to the plaintiff or anyone else could

not be used to establish a hostile work environment claim). 6

       Other circuit courts that have considered this issue have reached that same result.

See Adams v. Austal, U.S.A., L.L.C., 754 F.3d 1240, 1250 (11th Cir. 2014); see also Cottrill

v. MFA, Inc., 443 F.3d 629, 636–37 (8th Cir. 2006); Brooks v. City of San Mateo, 229 F.3d

917, 924 (9th Cir. 2000); Pryor v. Seyfarth, Shaw, Fairweather & Geraldson, 212 F.3d


       6
          Other precedent from our circuit appears consistent with this conclusion. See
Honor v. Booz-Allen & Hamilton, Inc., 383 F.3d 180, 190 (4th Cir. 2004) (“Honor makes
much of the treatment of other Booz Allen employees, but we focus on Honor’s personal
experience.”); Lowery v. Circuit City Stores, Inc., 158 F.3d 742, 761 (4th Cir. 1998) (“[A]n
individual plaintiff in a private, non-class action alleging employment discrimination is not
litigating common questions of fact, but the discrete question of whether the employer
discriminated against the plaintiff in a specific instance.”), vacated on other grounds, 527
U.S. 1031 (1999); White v. Fed. Exp. Corp., 939 F.2d 157, 161 (4th Cir. 1991) (concluding
“[o]ur review of the record reveals no evidence which establishes that the alleged racially
hostile environment had any effect on John White.”).

                                             17
976, 978 (7th Cir. 2000); Burnett v. Tyco Corp., 203 F.3d 980, 981 (6th Cir. 2000); Hirase–

Doi v. U.S. W. Commc’ns, Inc., 61 F.3d 777, 782 (10th Cir. 1995), abrogated on other

grounds by Burlington Indus. v. Ellerth, 524 U.S. 742 (1998), and Faragher, 524 U.S. 775,

as recognized by Doe v. Hutchinson, 728 F. App’x 829, 833 (10th Cir. 2018). In Adams,

the Eleventh Circuit explained the reasoning for this conclusion. “The totality of a

plaintiff’s workplace circumstances does not include other employees’ experiences of

which the plaintiff is unaware. Courts conduct the objective assessment from the

perspective of a reasonable person in the plaintiff’s position, knowing what the plaintiff

knew.” Adams, 754 F.3d at 1250. Thus, it follows that “[a] reasonable person in the

plaintiff’s position is not one who knows what the plaintiff learned only after [his]

employment ended or what discovery later revealed.” Id.

       Following our decisions and those of our sister circuits, we confirm that information

about which a plaintiff is unaware cannot, by definition, be part of a plaintiff’s work

experience. Thus, such information is not proper for consideration in evaluating the severe

or pervasive requirement of a hostile work environment claim. 7

       Finally, we are mindful that we have primarily discussed the evidence offered by

Perkins in categories. In so doing, we do not overlook the requirement that we consider the

totality of the plaintiff’s experiences in evaluating whether an environment is severe or



       7
          It is possible that this type of evidence could be probative on other issues. For
example, in King, we held that evidence of statements made to others about which a
plaintiff is unaware may be relevant to other issues such as whether the alleged conduct
was on account of sex or race. King, 594 F.3d at 310–311.


                                            18
pervasive. Spriggs, 242 F.3d at 184 (citing Harris, 510 U.S. at 23). Considering the

evidence in its totality, for the foregoing reasons, we affirm the district court’s order

granting IPC summary judgment on Perkins’ hostile work environment claim.

                                             C.
       Perkins next alleges that his working conditions were so intolerable that he was

constructively discharged. Perkins testified he left IPC because he had no ability to provide

a positive influence, was devalued and could not sleep at night because of racism and

prejudice. Perkins added that high blood pressure and shoulder pain were additional

reasons he left. But on appeal, Perkins appears to argue the same evidence that supports

his hostile work environment claim also supports and creates a genuine issue of material

fact on his constructive discharge claim. Either way, we disagree.

       A claim for constructive discharge has two elements. First, a plaintiff must show

that his ‘“working conditions became so intolerable that a reasonable person in the

employee’s position would have felt compelled to resign.’” Green v. Brennan, 136 S.Ct.

1769, 1776 (2016) (quoting Pennsylvania State Police v. Suders, 542 U.S. 129, 148

(2004)). Second, a plaintiff must actually resign because of those conditions. Id. at 1777–

78. Here, the only issue is the intolerability requirement.

       “‘Intolerability’ is not established by showing merely that a reasonable person,

confronted with the same choices as the employee, would have viewed resignation as the

wisest or best decision, or even that the employee subjectively felt compelled to resign.”

Blistein v. St. John’s Coll., 74 F.3d 1459, 1468 (4th Cir. 1996), overruled on other grounds

by Oubre v. Entergy Operations, Inc., 522 U.S. 422 (1998), as recognized by Adams v.


                                             19
Moore Bus. Forms, Inc., 224 F.3d 324, 327 (4th Cir. 2000). Instead, intolerability “‘is

assessed by the objective standard of whether a ‘reasonable person’ in the employee’s

position would have felt compelled to resign,’ . . . that is, whether he would have had no

choice but to resign.” Id. (internal citations omitted) (emphasis in original) (quoting

Bristow v. Daily Press, Inc., 770 F.2d 1251, 1255 (4th Cir. 1985)).

       Critically, difficult or unpleasant working conditions and denial of management

positions, without more, are not so intolerable as to compel a reasonable person to resign.

See Williams v. Giant Food, Inc., 370 F.3d 423, 434 (4th Cir. 2004) (being yelled at, told

you are a poor manager, required to work with an injured back and chastised in front of

customers is not so intolerable as to compel a reasonable person to resign); Matvia v. Bald

Head Island Mgmt., Inc., 259 F.3d 261, 273 (4th Cir. 2001) (co-worker ostracism, denial

of a management position and mandatory counseling for turning in an inaccurate time card

would not have compelled a reasonable person to resign); Munday v. Waste Mgmt. of N.

Am., Inc., 126 F. 3d 239, 244 (4th Cir. 1997) (being ignored by co-workers and top

management was insufficient to establish constructive discharge); Carter v. Ball, 33 F.3d

450, 459 (4th Cir. 1994) (dissatisfaction with work assignments, perceived unfair criticism

and difficult and unpleasant working conditions are not so intolerable as to compel a

reasonable person to resign).

       Considering the record de novo and reviewing the evidence in the light most

favorable to Perkins, we find no error in the district court’s conclusion that the evidence

offered by Perkins does not create a genuine issue of material fact as to constructive

discharge. Proof of constructive discharge requires “a greater severity or pervasiveness of


                                            20
harassment than the minimum required to prove a hostile working environment.” Spencer

v. Wal-Mart Stores, Inc., 469 F.3d 311, 316 n.4 (3d Cir. 2006) (internal quotation marks

omitted); accord Suders, 542 U.S. at 146–47. Because we have already concluded that

Perkins failed to show he was subjected to a hostile environment, it necessarily follows

that he cannot show constructive discharge. See Helton v. Southland Racing Corp., 600

F.3d 954, 960 (8th Cir. 2010) (finding that where the plaintiff failed to show she was

subjected to a hostile work environment it necessarily followed that she could not show

she was constructively discharged); see also Dortch v. Cellco P’ship, 770 F. App’x 643,

646 (4th Cir. 2019) (holding that the district court correctly rejected plaintiff’s constructive

discharge claim after finding she failed to establish a hostile work environment). Thus, the

district court did not err in granting IPC’s motion for summary judgment as to Perkins’

constructive discharge claim.

                                            D.

       Last, we turn to Perkins’ retaliation claim. Perkins alleges that IPC retaliated against

him for engaging in actions protected by Title VII. Perkins offered evidence that he raised

a litany of concerns about work-related issues at IPC. He further testified that, as a result

of expressing his concerns, IPC took the following retaliatory actions against him: (1)

denied him annual reviews; (2) denied him a fair opportunity to compete for manager

positions; (3) caused him to suffer a worsening hostile work environment; (4) denied him

overtime; (5) denied him a machine coordinator position; and (6) constructively discharged

him.




                                              21
       Perkins contends the district court erred in granting summary judgment to IPC on

this claim arguing the district court provided no legal reasoning on this issue. Like the

disparate treatment claim, the district court did not separately analyze Perkins’ retaliation

claim. However, it granted summary judgment for the reasons articulated in the magistrate

judge’s report, which addressed retaliation. Regardless of the extent of analysis below,

based on our de novo review, we find Perkins did not create a genuine issue of material

fact on his retaliation claim.

       In addition to forbidding discrimination based on race, “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.” Laughlin v. Metro. Washington

Airports Auth., 149 F.3d 253, 255 (4th Cir. 1998) (citing 42 U.S.C. § 2000e-3(a)). To

establish a prima facie claim of retaliation, a plaintiff must show: (1) that he engaged in

protected activity, (2) that the employer took a materially adverse action against him and

(3) there is a causal connection between the protected activity and the adverse action. See

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 61–68 (2006) (redefining the

second element to be a “materially adverse action” instead of an “adverse employment

action”); King v. Rumsfeld, 328 F.3d 145, 150-51 (4th Cir. 2003) (listing the original factors

of a retaliation claim pre-Burlington).

       Looking more closely at these elements, protected activities can fall into two

categories: participation and opposition. Laughlin, 149 F.3d. at 259. “An employer may

not retaliate against an employee for participating in an ongoing investigation or




                                             22
proceeding under Title VII, nor may the employer take [an] adverse employment action

against an employee for opposing discrimination practices in the workplace.” Id.

       Next considering the materially adverse action requirement, it is different from an

adverse employment action required for a disparate treatment claim. As the Supreme Court

has held and we have made clear, Title VII’s anti-retaliation provision extends beyond

retaliatory acts in the workplace. Burlington, 548 U.S. at 63; Strothers v. City of Laurel,

Maryland, 895 F.3d 317, 327 (4th Cir. 2018). Regarding the requirement of a material

adverse action, the Supreme Court explained “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, 548 U.S. at 68 (quoting Rochon v. Gonzales, 438

F.3d 1211, 1219 (D.C. Cir. 2006)) (internal quotation marks omitted). The Supreme Court

emphasized that the “materiality” requirement was necessary to ensure that only significant

harms would be actionable. Id. at 68–70.

       Last, to establish the necessary causation for a retaliation claim, “the employer must

have taken the adverse employment action because the plaintiff engaged in a protected

activity.” Dowe v. Total Action Against Poverty, 145 F.3d 653, 657 (4th Cir. 1998)

(emphasis in original). At the prima facie stage, a plaintiff does not have to show that “their

protected activities were but-for causes of the adverse action.” Strothers, 895 F.3d at 335.

However, he still must make some showing of causation. For example, a plaintiff may

establish causation by showing that “(1) the employer either understood or should have

understood the employee to be engaged in protected activity and (2) the employer took


                                              23
adverse action against the employee soon after becoming aware of such activity.” Id. at

335–36.

       Turning to the evidence Perkins argues supports his claim, Perkins testified about a

lengthy list of alleged protected activities. But quantity does not necessarily equal quality.

As the district court properly noted, three of those alleged protected activities—Perkins’

exit interview, Ethics Helpline call and meetings with mill management—occurred after

he stopped working at IPC and, thus, were not related to any adverse actions towards him.

       Further, the only evidentiary source to which Perkins points for most of his other

alleged protected activities is the report regarding the Helpline call and interview which

occurred after Perkins stopped working at IPC. In other words, Perkins claims that the call

and interview are protected activities, but then claims the individual issues he raised during

the call and follow up interview are separate protected activities. This, of course, is

illogical. Just as the call and interview were not related to his alleged adverse actions

because they occurred after Perkins stopped working at IPC, the individual issues raised in

the call and interview are equally unrelated.

       But Perkins offered evidence of two alleged protected activities that may be

appropriate from a timeliness perspective: (1) Perkins’ complaint in 2012 that African

American employees were treated unfairly in the assignments to the twelve-hour shift for

working one part of the winder machine and the shorter shifts for the other part of that same

machine, and (2) Perkins’ advocacy in the last two years he worked at IPC for a raise for

another African American employee. Considering the evidence in the light most favorable




                                             24
to Perkins, at least for those two activities, Perkins satisfies the first element of a retaliation

claim.

         Despite that, Perkins has not produced enough evidence to create a genuine issue of

material fact about the second or third required elements. With respect to the second

element—material adverse actions by IPC—Perkins alleged the six actions listed above.

All suffer from fatal deficiencies. First, on the issue of timeliness, Perkins’ claims that he

was denied overtime, a machine coordinator position and the opportunity to compete for

manager positions are all untimely. Having filed a Charge of Discrimination with SCHAC

and the EEOC on January 8, 2015, Perkins may proceed and recover only on retaliatory

acts that occurred within the 300 days prior to the date of that charge—March 14, 2014.

See Morgan, 536 U.S. at 110, 114. The alleged acts regarding overtime, the machine

coordinator position and manager positions occurred more than 300 days prior to March

14, 2014.

         As to his remaining alleged material adverse actions, Perkins cannot establish

hostile work environment or constructive discharge are material adverse actions because

we have already concluded he has not offered evidence that creates a genuine issue of

material fact on those issues. And as to Perkins’ claim that he was denied annual reviews,

in addition to not offering sufficient evidence that this constituted an adverse employment

action (See Roberts, 2015 WL 3932398, at *8), he likewise failed to offer sufficient

evidence that it was a materially adverse action.

         In addition, regarding the third element, Perkins has not linked any of the alleged

protected activity to any of the alleged adverse actions from a causation standpoint.


                                                25
Although not clearly stated, Perkins appears to argue that the statement in the Eastover

EEOC Charge Investigation Report that his supervisor “feels like there is a group of people

that keep others stirred up” shows a causal connection. J.A. 1034. However, that single line

of a report issued after Perkins stopped working at IPC does not mention Perkins, nor does

it link any of Perkins’ alleged protected activities to any of IPC’s alleged adverse actions.

We are required to and do consider the evidence in the light most favorable to Perkins. But

Perkins must, in the end, offer some evidence to support the essential elements of his claim.

Here, he did not. There is not a genuine issue of material fact on the required causation

necessary for a retaliation claim. Thus, Perkins’ retaliation claim should be dismissed.




                                              IV.
       Our decision today should not be construed as endorsement of the conduct alleged

by Perkins. To the contrary, such alleged conduct is inappropriate. Despite that, it falls

short, as a matter of law, of the evidence required to support a Title VII claim. For the

reasons set forth above, the ruling of the district court is

                                                                              AFFIRMED.




                                              26
