                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 15-1364


SARA L. FOX,

                Plaintiff - Appellant,

           v.

LELAND VOLUNTEER FIRE/RESCUE DEPARTMENT, INC.; JOHN GRIMES,
in his individual and official capacities as Chief of the
Department,

                Defendants - Appellees.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Louise W. Flanagan,
District Judge. (7:12-cv-00354-FL)


Argued:   March 21, 2016                    Decided:   May 5, 2016


Before AGEE and THACKER, Circuit Judges, and Henry E. HUDSON,
United States District Judge for the Eastern District of
Virginia, sitting by designation.


Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.


ARGUED:   Sara   Lyn  Faulman,   WOODLEY   &  MCGILLIVARY,  LLP,
Washington, D.C., for Appellant.    Paul H. Derrick, DERRICK LAW
GROUP, Raleigh, North Carolina, for Appellees. ON BRIEF: Thomas
A. Woodley, WOODLEY & MCGILLIVARY, LLP, Washington, D.C., for
Appellant.    Melody J. Jolly, CRANFILL SUMNER & HARTZOG LLP,
Wilmington, North Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

      Until   her     termination    on       January    5,    2011,    Sara   L.   Fox

(“Fox”) was a lieutenant with the Leland Volunteer Fire/Rescue

Department     (“the     Department”)          in     Brunswick      County,     North

Carolina.       The     Department    is        staffed       by   nineteen     career

firefighters and approximately eighty-five other individuals who

serve on a volunteer basis.               Fox was the first female career

employee to be promoted to the position of lieutenant.                         In that

capacity, she served as a shift supervisor overseeing not only

firefighting    operations,    but    also          training   and     administrative

duties.

      In her complaint, Fox alleges that during her service as a

shift supervisor, she was subjected to continuous condescending

and   disrespectful     behavior     from      her     male    subordinates.        The

persistent hostility, she contends, resulted in a hostile work

environment, which she attributes to her gender.                         She further

alleges that she was subsequently terminated in retaliation for

filing complaints about her workplace treatment.                       Fox named both

the Department and its Chief, John Grimes (“Chief Grimes”), as

defendants.

      Finding that Fox failed to either forecast evidence linking

the alleged hostile work environment to her sex, or demonstrate

that the true motivation for her termination was retaliation,

the district court granted the Defendants’ motion for summary

                                          3
judgment   as    to     the    hostile          work    environment           and     retaliatory

discharge claims under Title VII of the Civil Rights Act; her

claim for retaliation for speaking out about her alleged sexual

harassment as a matter of public concern, in violation of the

First   Amendment;       and        her    claim       of       violations      of        the    Equal

Protection Clause of the Fourteenth Amendment.

     While we agree that Fox’s evidence fails, as a matter of

law, to support her hostile work environment, First Amendment,

and Equal Protection claims, we vacate and remand as to Fox’s

claim of retaliatory discharge, in violation of Title VII of the

Civil Rights Act.

     The   Department          serves       five       counties         in    North       Carolina.

Chief   Grimes        oversees        the       Department’s             operations.                 The

Department is governed by a seven person board of directors, of

which   Chief    Grimes       is     not    a    member.           The       chain    of    command

consists of Chief Grimes, an assistant chief, two captains, and

eight lieutenants.             Four of the eight lieutenants are career

firefighters.         Each lieutenant supervises a shift of paid and

volunteer employees.

     Fox        began         her         career           in      July         2008            as     a

firefighter/paramedic.                After          her        first    year        of    service,

following a competitive application process, she was promoted to

lieutenant and placed in charge of “D” shift, which, according

to the record, had a reputation for being dysfunctional.

                                                 4
     From the inception of her command, she experienced what she

describes       as    disparate          treatment          and     harassment       from    her

subordinates.          This included declining to eat food which she

purchased and prepared at her own expense, ignoring her attempts

to organize or facilitate training, and leaving the fire station

without     her      permission.          Fox       maintained         that   her    immediate

subordinates,         the    relief       supervisors,             were    impertinent        and

disrespectful.           The       relief      shift      supervisors,        in    her     view,

avoided interaction with her and refused to perform tasks she

assigned.         They      also    complained         to    her       superiors    about     her

leadership.

     Fox contends that Chief Grimes treated her differently from

her male counterparts.              For example, she was not provided access

to   the    lieutenant’s            computer        for      approximately          one     month

following       her   promotion,         was    required          to    complete    tasks     not

required of male lieutenants, and was not permitted to give her

subordinate firefighters their performance evaluations, unlike

other lieutenants.

     In June 2010, approximately one year after her promotion to

lieutenant, Fox received a negative performance evaluation, as a

result     of   which    she       was   placed      on     a     ninety-day   probationary

period.     The evaluation noted that she had failed to meet four

training goals identified in her 2009 evaluation, missed several



                                                5
staff     meetings,       and     was    ineffective         in    communicating             with

members of her shift.

     In    December       2010,    Chief       Grimes    met      with    Fox    to    discuss

continuing reports from firefighters on her shift concerning her

leadership    and     performance.             Chief    Grimes      remarked       that       her

subordinates were “throwing [her] under the bus” and that she

“must feel like [she] was in a hostile working environment.”

(J.A. at 709 (alterations in original).)                           During the meeting,

Chief Grimes offered suggestions about how she could improve her

effectiveness as a leader and assured her that she was not being

considered for termination.                    Contrary to this representation,

Chief Grimes and his wife, who was a member of the board of

directors of the Department, represented, after this lawsuit was

initiated,        that     they         were       privately        considering             Fox’s

termination around the time of this December meeting.

     Fox did not mention to Chief Grimes at the December 2010

meeting     the     harassing       and        discourteous         behavior          she     was

experiencing       from    her    subordinates         and   peers.         In    the       month

following         that     meeting,            she      submitted          three        formal

discrimination       complaints         to     Chief    Grimes.          All     three       were

unanswered.        At that point, Fox engaged an attorney to file a

formal     complaint       of     gender       discrimination            with    the        Equal

Employment Opportunity Commission (“EEOC”).



                                               6
      On January 2, 2011, Fox disclosed to a female co-worker

that she had consulted with an attorney about filing an EEOC

complaint.     That same day, the co-worker notified Chief Grimes

of her conversation with Fox, including hiring of legal counsel.

Chief Grimes promptly recommended to the board of directors that

Fox be terminated.       Two days later, on January 5, 2011, Fox was

terminated     for       her    purported      poor     work     performance,

insubordination,     and       unwillingness    to    accept     management’s

suggestions for improvement.

      By   Memorandum      Opinion   and    accompanying       Order   entered

March 10, 2015, the district court granted Defendants’ motion

for summary judgment as to all counts. 1         The district court found

Fox’s evidence of a sexually-hostile work environment inadequate

to demonstrate that it was both objectively and subjectively

offensive.     (J.A. at 729−31.) The court acknowledged that while

objective hostility is “quintessentially a question of fact, in

certain circumstances summary judgment is appropriate to avoid

creat[ing] a ‘general civility code’ in the workplace.”                  (J.A.

at   729   (alteration    in   original)    (internal   citations      omitted)

      1Defendants contend that the district court lacked subject
matter jurisdiction to entertain Plaintiff’s Title VII claim
because it was not included in her original EEOC complaint. The
district court concluded that it was a “close call,” and the
original allegations were sufficient to encompass the Title VII
claim. (J.A. at 727.)      We find no reason to question the
district court’s conclusion.



                                      7
(quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75,

81 (1998); Mosby-Grant v. City of Hagerstown, 630 F.3d 326, 335

(4th       Cir.   2010)).)       The   district   court   concluded    that   the

offensive conduct alleged by Fox was insufficient to alter the

conditions of her employment as required by Oncale.                    (J.A. at

729.) 2

       With       respect   to   Fox’s   retaliation   claims,   the   district

court found the evidence insufficient to show that Defendants’

true motive in terminating her was retaliation.              (J.A. at 731.)

       A grant of summary judgment is reviewed de novo by this

Court.       Desmond v. PNGI Charles Town Gaming, L.L.C., 630 F.3d

351, 354 (4th Cir. 2011).              We are required to view the facts and

all justifiable inferences arising therefrom in the light most

favorable to the non-moving party in order to determine whether

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

movant is entitled to judgment as a matter of law.”               Woollard v.

Gallagher, 712 F.3d 865, 873 (4th Cir. 2013) (quoting Fed. R.

Civ. P. 56(a)).             A dispute is genuine if “a reasonable jury



       2
       In noting the scant evidence of sexual hostility, the
district court identified only two relevant events -- the fact
that a firefighter referred to a coworker as a “hooker” and a
comment by a relief supervisor that Fox was only promoted
because of her gender.    Relying on Faragher v. City of Boca
Raton, 524 U.S. 775 (1998), the district court found these
comments to be neither severe nor pervasive enough to warrant
relief. (J.A. at 730−31.) We agree.



                                           8
could return a verdict for the nonmoving party.”                                   Dulaney v.

Packaging Corp. of Am., 673 F.3d 323, 330 (4th Cir. 2012).                                       A

fact is material if it “might affect the outcome of the suit

under the governing law.”               Henry v. Purnell, 652 F.3d 524, 548

(4th Cir. 2011) (quoting Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986)).

       Turning     first      to   Fox’s       gender-based          claims,      we    find    no

evidence     in    the      record   to    support            her    contention        that    she

suffered     from       a     discriminatorily            hostile       or   abusive          work

environment,       in       violation     of    Title         VII.     Her     subordinates’

conduct was discourteous, insubordinate, and perhaps at times

boorish,     but    not      demonstrative          of    sexual      animus.          As   Judge

Wilkinson noted in EEOC v. Sunbelt Rentals, Inc.:

       Workplaces are not always harmonious locales, and even
       incidents that would objectively give rise to bruised
       or wounded feelings will not on that account satisfy
       the severe or pervasive standard.    Some rolling with
       the punches is a fact of workplace life.         Thus,
       complaints   premised on   nothing  more   than  “rude
       treatment by [coworkers],” . . . are not actionable
       under Title VII.

521   F.3d   306,       315–16     (4th    Cir.          2008)      (first   alteration         in

original) (internal citations omitted).

       A similar analysis supports the conclusion that Fox failed

to    show   an    actionable        claim      for       a   violation      of    the      Equal

Protection Clause of the Fourteenth Amendment, which is also

enforced through 42 U.S.C. § 1983.


                                                9
     With      respect   to   Fox’s    claim      that   she   was   discharged       in

retaliation      for   her    complaints     to    Chief    Grimes       of    rude   and

insubordinate behavior by her subordinates, these claims largely

depend    on    circumstantial     evidence.         Therefore,          the   district

court conducted its analysis under the burden-shifting framework

articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973).

     Under this three-tiered analytical framework, a plaintiff

must initially demonstrate a prima facie case of retaliation.

This requires proof (1) that she engaged in protected activity;

(2) that her employer took an adverse employment action; and (3)

that a but-for causal connection existed between the protected

activity and the asserted adverse action.                  See Univ. of Tex. Sw.

Med. Ctr. v. Nassar, ___ U.S. ___, 133 S. Ct. 2517, 2532–33

(2013); Foster v. Univ. of Md.−E. Shore, 787 F.3d 243, 250 (4th

Cir. 2015).      If a plaintiff succeeds in this threshold showing,

the defendant is afforded an opportunity to produce evidence of

“a   legitimate,         nondiscriminatory         reason      for       the    adverse

employment action.”           Hill v. Lockheed Martin Logistics Mgmt.,

Inc., 354 F.3d 277, 285 (4th Cir. 2014) (en banc).                               If the

employer makes this showing, plaintiff may rebut such evidence

by demonstrating that the employer’s purported non-retaliatory

reasons   “were    not    its   true   reasons,      but    were     a    pretext     for



                                        10
discrimination.”           Id.       (quoting         Reeves     v.      Sanderson       Plumbing

Prods., Inc., 530 U.S. 133, 143 (2000)).

       In   the         immediate       case,         the    district           court    assumed,

arguendo,        that    Fox     could     establish         a   prima      facie       case,   but

concluded that Fox’s “retaliation claim fails because she cannot

demonstrate        that        her    termination            was        truly    motivated       by

retaliation.”           (J.A. at 732.)           Viewing the evidence in the light

most favorable to Fox, we cannot agree that there is no genuine

dispute     of    material       fact      with    respect         to    the    motivation      for

Fox’s termination.              The record reveals conflicting evidence as

to the timing of Chief Grimes’ decision to terminate Fox in

close proximity to learning of her complaint to the EEOC.                                       The

evidence of Fox’s alleged insubordination during her December 1,

2010 meeting with Chief Grimes is also less than clear.                                         When

questioned in their depositions about the December 1 meeting,

both    Chief       Grimes        and      the     assistant            chief     declined       to

characterize her deportment as insubordinate.

       As this Court noted in EEOC v. Sears Roebuck & Co., a

different        explanation         for    termination,           provided       at    different

times, is “in and of itself, probative of pretext.”                                      243 F.3d

846, 852–53 (4th Cir. 2001).                      This inference can be drawn not

only    when      an     employer          provides         different          explanations      at

different        times,        but      also      when       the        explanations       appear

inconsistent.            Thurman v. Yellow Freight Sys., Inc., 90 F.3d

                                                 11
1160, 1167 (6th Cir. 1996).                    This Court will therefore vacate

the district court’s award of summary judgment on Fox’s claim

for retaliation under Title VII, 42 U.S.C. § 2000e, et seq, and

remand for further proceedings on this claim.

      A       related    strand        of   Fox’s    retaliation        claim   is    Fox’s

contention that her unlawful discharge also violated her First

Amendment right as a public employee to speak on a matter of

public        concern.      This       claim   was       summarily      rejected     by   the

district court without substantive explanation.                          First Amendment

retaliation claims brought under 42 U.S.C. § 1983 are reviewed

under     a    different    analytical         framework      than      those   prosecuted

under Title VII.           Campbell v. Galloway, 483 F.3d 258, 270 (4th

Cir. 2007).

      A   public        employee’s       speech     is    constitutionally      protected

only when it addresses a matter of public concern, as opposed to

a matter of personal interest.                  Kirby v. City of Elizabeth City,

388 F.3d 440, 448 (4th Cir. 2004).                       “Speech involves a matter of

public concern when it involves an issue of social, political,

or   other      interest    to     a    community.”          Id.   at    446;   see   also,

Connick v. Myers, 461 U.S. 138, 146 (1983).                               Whether speech

addresses a matter of public concern is a question of law for

the court.         Urofsky v. Gilmore, 216 F.3d 401, 406 (4th Cir.

2000).



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     It is well-established in this circuit that “we may affirm

[a] dismissal by the district court upon the basis of any ground

supported by the record even if it is not the basis relied upon

by the district court.”       Ostrzenski v. Seigel, 177 F.3d 245, 253

(4th Cir. 1999); see also, Hutto v. S.C. Ret. Sys., 773 F.3d

536, 549–50 (4th Cir. 2014).

     We   are   not   convinced   that   Fox’s    discussions   with   Chief

Grimes concerning personal employment issues rise to the level

of a matter of public concern.            The district court properly

granted summary judgment on Fox’s First Amendment retaliation

claim.

     This   Court     will   therefore   affirm    the   district   court’s

dismissal of the hostile work environment claim under Title VII,

her Equal Protection claim and First Amendment claim brought

under 42 U.S.C. § 1983, and vacate the lower court’s dismissal

of the Title VII retaliation claim and remand that claim for

further proceedings.

                                                         AFFIRMED IN PART,
                                                          VACATED IN PART,
                                                              AND REMANDED




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