                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 03-1683



CHERYL NYE,

                                                  Plaintiff - Appellant,

           versus


CARL ROBERTS; BOARD      OF   EDUCATION   OF   CECIL
COUNTY, MARYLAND,

                                                 Defendants - Appellees,

           and


NANCY S. GRASMICK, State Superintendent of
Schools; NELSON BOLENDER,

                                                              Defendants.

---------------------------------------------

THE METROPOLITAN WASHINGTON EMPLOYMENT LAWYERS
ASSOCIATION,

                                          Amicus Supporting Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, District Judge. (CA-
99-1797-JFM)


Argued:   May 25, 2005                          Decided:   August 5, 2005


Before WILLIAMS, MICHAEL, and DUNCAN, Circuit Judges.
Affirmed in part, reversed in part, and remanded by unpublished per
curiam opinion.


ARGUED: Nancy G. Black, Laredo, Texas, for Appellant. Laurence
Samuel Kaye, Rockville, Maryland, for Amicus Supporting Appellant.
Leslie Robert Stellman, HODES, ULMAN, PESSIN & KATZ, P.A., Towson,
Maryland, for Appellees. ON BRIEF: Neil L. Henrichsen, Joanna R.
Onorato, Eric L. Siegel, HENRICHSEN SIEGEL, P.L.L.C., Washington,
D.C., for Amicus Supporting Appellant. Eric W. Gunderson, HODES,
ULMAN, PESSIN & KATZ, P.A., Towson, Maryland, for Appellees.


Unpublished opinions are not binding precedent in this circuit.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




                                2
PER CURIAM:

     Cheryl Nye appeals the district court's order granting summary

judgment in favor of her former employer, the Superintendent and

Board of Education of Cecil County (the "Board"), on her claims of

sexual   harassment,   retaliation,   and   constructive   discharge   in

violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§§ 2000e et seq.   We affirm the order granting summary judgment on

the sexual harassment and constructive discharge claims.       However,

we reverse the award of summary judgment as to the retaliation

claim and remand for proceedings consistent with this opinion.



                                      I.

     In 1981, the Board hired Nye as a school psychologist.       Every

year, she worked with students at five or six schools within the

Cecil County Public School System.     At all times relevant to these

proceedings, Nye was supervised by Dr. R. Wayne Carmean, the

Assistant Superintendent for Student Services and Special Programs.

Dr. Carmean determined the schools that Nye would serve during the

school year, and Nye typically worked at each school for two days

per month.

     During the 1993-1994 school year, and again in 1996, Nye

alleges that she was sexually harassed by Robert Harris, the

principal of Leeds Elementary School ("Leeds").        In August 1996,

Nye complained of the harassment to Dr. Carmean and Henry Shaffer,


                                  3
the    Director      of     Human    Resources.       The    Board    commenced     an

investigation        and,     from    August   1996     through    February      1997,

questioned Nye, Harris, and other school personnel concerning Nye's

allegations of sexual harassment.              Ultimately, the Board concluded

that   the    allegations       could    neither   be    proven      nor    disproven.

Nevertheless, the Board transferred Nye away from Leeds at her

request      and    directed    that    Harris    undergo     training      on   sexual

harassment.

       On May 20, 1997, Nye filed a complaint with the Office of

Civil Rights of the United States Department of Education ("OCR"),

regarding her claims of sexual harassment.                  The OCR referred Nye's

complaint to the Equal Employment Opportunity Commission ("EEOC")

and also notified the Board of her charge.                        Subsequently, on

October 15, 1997, Nye filed a formal charge of sex discrimination

with the EEOC.

       According to Nye, the Board took a number of retaliatory

actions against her in the sixteen months following her first

complaint of sexual harassment. First, Dr. Carmean required Nye to

account for her time and whereabouts, something she had never

previously been asked to do as an employee of the school system.

Second, Dr. Barbara Wheeler, the Associate Superintendent, reacted

critically to a presentation Nye made to the Assistant Principals

Committee.         Third, Nye alleges that she was removed from various

committees         and    special      assignments,      including         the   Crisis


                                           4
Intervention Team and the Assistant Principals Committee.                    Fourth,

Dr. Carmean refused to consider Nye for a promotion to the position

of psychologist coordinator.             Fifth, Dr. Carmean required Nye to

defend her decision to release a student from special education

services.        Nye's       remaining         allegations     of     discriminatory

retaliation involve this placement decision.

       On April 8, 1998, Dr. Carmean scheduled a meeting to question

Nye and other colleagues about the student's release.                    Nye asserts

that, because she had received no agenda for the meeting and

because she was generally confused about it, she attempted to

obtain clarification from Dr. Carmean.                     When Dr. Carmean was

unavailable, Nye sought out another colleague, Melissa Weyl, for

information about the meeting.                  According to Dr. Carmean, Nye

approached   Weyl      in    a    rude   and    confrontational       manner,    which

resulted in a disruption to the workplace.                  On April 15, 1998, on

account of this incident, Dr. Carmean issued Nye a formal letter of

reprimand.

       Significantly, the letter reprimanded Nye for two separate

incidents:       (1)   for       inappropriately        confronting    Melissa   Weyl

regarding the placement decision, and (2) for notifying the EEOC

that   another    colleague,        Leslie      Rink,    was   allegedly   sexually

harassed by a school principal.                Dr. Carmean     wrote that:

            In our conference of April 9, 1998 I spoke with you
       about two issues.      The first issue involved your
       confrontation with Melissa Weyl at Elkton Middle School.
       It was inappropriate for you to seek out and threaten Ms.

                                           5
         Weyl at her work site. Your contact was upsetting to Ms.
         Weyl and this must not occur again. Any contact with Ms.
         Weyl must be held at a professional level.

              The second matter related to your letter in which
         you alleged that Ms. Leslie Rink, School Psychologist,
         was subjected to sexual harassment.      By Ms. Rink's
         affidavit she indicated her anger with you for your
         letter involving her in allegations against a co-worker
         which Ms. Rink denies ever occurred. Ms. Rink was upset
         by this incident. You are directed to conduct yourself
         with Ms. Rink in a professional way.

J.A. 232.

         Shortly thereafter, on June 15, 1998, Dr. Carmean completed

Nye's annual performance evaluation. Every year, Nye was evaluated

in four areas:     leadership skills, management skills, professional

growth, and interpersonal relationships. Her performance was rated

on   a    scale   of    4   ("exemplary"),   3    ("effective"),    2   ("needs

improvement"),         or   1   ("unsatisfactory").     In   this   particular

evaluation, Nye received several "unsatisfactory" ratings in the

area of interpersonal relationships.             However, since 1995, she had

never received a rating lower than "effective."

         Nye asserts that, on account of these alleged retaliatory

actions, she felt vulnerable to termination and, as a result,

suffered from severe emotional distress.              Accordingly, on August

28, 1998, Nye resigned her employment with the school system.               She

subsequently filed suit, alleging that the Board perpetuated a

hostile work environment, retaliated against her for complaining of

sexual harassment, and constructively discharged her in violation



                                         6
of Title VII.1        After the district court awarded summary judgment

to the Board on all of her claims, Nye timely filed the instant

appeal.



                                          II.

       We review the district court's order granting summary judgment

de novo.      Summary judgment is proper when no issue of material fact

exists and the moving party is entitled to judgment as a matter of

law.       Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S.

317, 322 (1986).        In particular, the relevant inquiry is "whether

the    evidence       presents     a   sufficient     disagreement     to   require

submission to a jury or whether it is so one-sided that one party

must prevail as a matter of law."               Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 251-52 (1986).

       Nye first contends that the district court erred in dismissing

her hostile work environment claim against the Board. To establish

a   prima     facie    case   of   sexual       harassment   on   a   hostile   work

environment theory, a plaintiff must prove that:                       (1) she was

       1
      We agree with the district court's conclusion that, with
respect to her constructive discharge claim, Nye presented no
evidence that her working conditions were objectively intolerable
and thus failed to establish a prima facie claim of constructive
discharge. See Williams v. Giant Food, Inc., 370 F.3d 423, 434
(4th Cir. 2004) (dismissing constructive discharge claim where
employee failed to demonstrate that working conditions were
objectively intolerable). The evidence reveals that Nye submitted
her letter of resignation two years after the last act of alleged
harassment and three months after the last act of alleged
retaliation occurred.    By her own account, Nye resigned her
employment only after she was able to secure employment elsewhere.

                                            7
harassed because of her sex; (2) the harassment was unwelcome; (3)

the harassment was sufficiently severe or pervasive to create an

abusive working environment; and (4) some reasonable basis exists

for imputing liability to the employer.            Causey v. Balog, 162 F.3d

795, 801 (4th Cir. 1998) (establishing four-prong test for hostile

work environment claims). In this case, the district court granted

summary judgment to the Board on the grounds that no basis existed

to   impute   liability   to   the   Board   for    the   alleged   harassment

committed by Principal Harris.

      We have previously observed that "an employer is subject to

vicarious liability to a victimized employee for an actionable

hostile environment created by a supervisor with immediate . . .

authority over the employee."        Mikels v. City of Durham, 183 F.3d

323, 331 (4th Cir. 1999) (internal quotes omitted).                    Of key

importance in determining whether the illegal acts of an employee

should    be imputed to the employer is whether the misconduct was

"aided by the agency relation."           Id. at 331-32.       In Mikels, we

explained that:

      Two bright line rules define the boundaries of the root
      principle. Any harassing conduct that culminates in a
      "tangible employment action"2 against the victim is
      necessarily conduct "aided by the agency relation," since
      it can only be taken by supervisory employees empowered
      by their employers to take such action.          In that

      2
      "A tangible employment action constitutes a significant
change in employment status, such as hiring, firing, failing to
promote,     reassignment    with     significantly     different
responsibilities, or a decision causing a significant change in
benefits." Burlington Indus. v. Ellerth, 524 U.S. 742, 761 (1998).

                                      8
     circumstance, vicarious liability is absolute, without
     regard to whether the employer knew, or should have
     known, or approved of the act, or sought to prevent or
     stop it. At the other end . . ., harassment by a fellow-
     employee having no authority of any kind over the victim
     never can be found "aided by the agency relation"; as to
     such employees, the agency relation provides no "aid" for
     their conduct but workplace proximity, and that does not
     suffice for the purpose.

Id. at 332 (citations omitted) (footnote supplied).                          Ultimately,

"[t]he    determinant    is     whether        as     a    practical    matter     [the]

employment relationship to the victim was such as to constitute a

continuing threat to her employment conditions that made her

vulnerable to and defenseless against the particular conduct in

ways that comparable conduct by a mere co-worker would not."                         Id.

at 333.

     Nye contends that Harris possessed sufficient authority to

justify imputing liability to the Board since principals generally

provide   some   measure      of   input       into       the   evaluation    of   school

psychologists.      In   support      of       her    contention,      Nye     proffered

evidence that Tony Ligatti, another principal of a school in which

she worked, supplied Dr. Carmean with information about his working

relationship with Nye, information that subsequently became a part

of her performance evaluation.         While we are unwilling to conclude

that principals cannot be considered supervisory employees of

school psychologists as a general rule, we agree with the district

court that a jury could not reasonably find that Harris possessed

sufficient authority over Nye to justify imputing liability to the


                                           9
Board in this case.    The evidence before us is insufficient to

support a finding that Harris, as principal of just one school that

Nye visited for two days a month, possessed significant authority

over her.   By Nye's own account school psychologists reported to

representatives of the Board, not principals, and Nye identified

Dr. Carmean, not Harris, as her supervisor.    Nye fails to present

evidence that Harris evaluated her, directed her daily assignments,

or otherwise exerted authority over her sufficient to impute

liability to the Board.   Accordingly, the district court did not

err in its conclusion in this regard.

     Without a basis to impute liability to the employer, the Board

is potentially liable only for any negligence in taking action to

stop the alleged harassment.   Id. at 332.    As the district court

observed, however, Nye has presented no evidence that the Board was

negligent in addressing her complaints of sexual harassment.    The

evidence of record suggests that the Board conducted an immediate

and thorough investigation into Nye's allegations of harassment.

It then took prompt, corrective action, transferring Nye as she

requested, and directing Harris to undergo training.     Thus, the

district court did not err in granting summary judgment to the

Board on Nye's hostile work environment claim.




                                10
                                         III.

        Nye also contends that the district court erred in dismissing

her claim that the Board retaliated against her for complaining of

sexual harassment in violation of Title VII.                To establish a prima

facie case of discriminatory retaliation, a plaintiff must show

that:     "(1) she engaged in a protected activity; (2) the employer

took an adverse employment action against her; and (3) a causal

connection existed between the protected activity and the asserted

adverse action."        Von Gunten v. Maryland, 243 F.3d 858, 863 (4th

Cir. 2001).      An "adverse employment action" is an action that

negatively     effects    "the        terms,    conditions,       or   benefits"    of

employment.     Munday v. Waste Mgm't. of North America, Inc., 126

F.3d 239, 243 (4th Cir. 1997).            The district court awarded summary

judgment to the Board on Nye's retaliation claim on the grounds

that each alleged act of retaliation was either (1) not an adverse

employment action, or (2) not causally connected to her complaints

of sexual harassment.

     Although we agree with the district court that the majority of

Nye's     allegations    do     not    establish     a    prima    facie   case    of

retaliation, we disagree with this conclusion with respect to Dr.

Carmean's     reprimand       letter    and     Nye's    subsequent     performance

evaluation.      For    the    following       reasons,    we   believe    that    the

district court erred in granting summary judgment to the Board.




                                          11
       The district court reasoned that a reprimand or downgraded

performance evaluation is not an adverse employment action absent

some evidence that it was accompanied by some form of "practical

consequence[]" concerning the plaintiff's employment.            J.A. 334

(citing Von Gunten, 243 F.3d at 868).       See also Spears v. Missouri

Dep't of Corr. & Human Res., 210 F.3d 850, 854 (8th Cir. 2000) ("A

poor performance rating does not in itself constitute an adverse

employment action because it has no tangible effect upon the

recipient's employment . . . .").

       In this case, however, the evidence is such that a reasonable

jury could find that, in the context of the Board's system of

progressive discipline, the reprimand and performance evaluation

resulted in a material change in Nye's employment status.             Dr.

Carmean described the Board's progressive discipline program as

follows:

       Usually, there is a discussion.      Usually there is an
       asking, account for, getting the information and, based
       on   the   information,  you   might    take  appropriate
       disciplinary action which could be a verbal reprimand,
       which could be a written reprimand or it could very well
       be, you know, a recommendation for suspension or it could
       very well be a recommendation to the superintendent for
       dismissal.

J.A.    188.    Thus,   under   the    Board's   system   of   progressive

discipline, Dr. Carmean's formal letter of reprimand and Nye's

downgraded performance evaluation thrust Nye further along the

discipline track and closer to termination. As Dr. Carmean himself

explained:

                                      12
       I had talked to her. I put it in writing earlier. That
       didn't seem to make a difference.      So I thought a
       stronger evaluation would make a difference.
       . . . .
       If there had been no change in the behavior of the
       employee and it continued to progress the way it was
       progressing, it could ultimate[ly] lead to dismissal.

J.A. 191-93.    On this evidence, a jury could reasonably conclude

that   the   reprimand     and   performance   evaluation    amounted   to   a

tangible, adverse consequence with respect to Nye's status as an

employee of the school system.

       Significantly, too, the fact that Dr. Carmean's letter of

reprimand expressly chastised Nye for filing a complaint of sexual

discrimination is evidence upon which a reasonable jury could find

that   the   Board   was   retaliating     against   Nye   for   engaging    in

protected activity under Title VII.         Indeed, as the district court

seemed to observe, the reprimand letter could reasonably be viewed

as direct evidence of a retaliatory animus.                Specifically, the

district court reasoned that:

       With regard to the [letter of reprimand] one could argue
       that Nye has presented direct evidence of retaliation.
       The reprimand letter states that Nye was being
       reprimanded for her "letter in which [she] alleged that
       Ms. Leslie Rink, School Psychologist, was subjected to
       sexual harassment." The defendants argue, however, that
       Nye was not disciplined for communicating with the EEOC,
       but rather for doing so without Rink's permission and,
       indeed, without even her awareness that Nye had overheard
       her mention the harassment.

J.A. 332 n.6.    The resolution of a factual issue such as the true

motivation behind the reprimand letter was a jury function, and a

jury could have reasonably inferred from Dr. Carmean's letter that

                                      13
the Board's proffered explanation was a pretext for discriminatory

retaliation.    Accordingly, we hold that, with respect to the

reprimand   letter   and   the   performance   evaluation,   evidence   of

retaliation was sufficiently in material dispute to preclude the

award of summary judgment.

                                                      AFFIRMED IN PART,
                                                      REVERSED IN PART,
                                                           AND REMANDED




                                    14
