UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

HELEN L. PHILLIPS,
Plaintiff-Appellant,

v.
                                                                       No. 97-1981
BRUCE BABBITT, SECRETARY, UNITED
STATES DEPARTMENT OF THE INTERIOR,
Defendant-Appellee.

Appeal from the United States District Court
for the Western District of North Carolina, at Statesville.
Carl Horn, III, Chief Magistrate Judge.
(CA-95-131)

Argued: March 4, 1998

Decided: June 5, 1998

Before HAMILTON and WILLIAMS, Circuit Judges, and
BROADWATER, United States District Judge for the
Northern District of West Virginia, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Patricia Ann Bellasalma, Los Angeles, California, for
Appellant. James Michael Sullivan, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee. ON BRIEF: Mark T. Cal-
loway, United States Attorney, Charlotte, North Carolina, for Appel-
lee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Helen L. Phillips (Phillips) brought suit under Title VII of the Civil
Rights Act of 1964 (as amended)1 against Bruce Babbitt, Secretary of
the Interior (the Secretary), as head of the National Park Service. Phil-
lips alleged, inter alia, that she was subjected to discrimination by a
federal employee on the basis of sex. Phillips began employment as
a park ranger in 1990. She claims that she was disparately treated on
account of her sex and that she was subjected to hostile environment
sexual harassment by an intermittent supervisor, M. Terry Morris
(Morris). Phillips alleged a series of discriminatory actions by Morris
which extended over a period of years. During the administrative pro-
cess, the Secretary agreed that some of Morris' actions were viewed
as discriminatory. As a result, the parties also agreed that appropriate
action was taken against Morris. However, due to continuing viola-
tions by Morris, Phillips eventually filed the underlying lawsuit.

The parties consented to have the matter proceed before a United
States Magistrate Judge in April 1996.2 The Secretary filed a motion
entitled "Motion to Dismiss, or in the Alternative, for Summary Judg-
ment." Phillips opposed the motion. After review, the magistrate
judge granted the Secretary's motion for summary judgment and dis-
missed the case with prejudice on the grounds that Phillips failed to
exhaust administrative remedies available to her under the applicable
statutes relating to Title VII of the Civil Rights Act of 1964. Phillips
appeals this decision. Finding that the magistrate judge correctly
granted the Secretary's motion, we affirm.
_________________________________________________________________
1 The relevant section of Title VII is codified at 42 U.S.C. § 2000e-16.
2 The case was then assigned to United States Magistrate Judge Carl
Horn, III, for the United States District Court for the Western District of
North Carolina, Statesville, as the parties had consented to disposition
before a magistrate judge pursuant to 28 U.S.C.§ 635(c).

                    2
I.

The facts surrounding Phillips' claims are as follows. Phillips
began employment in 1987 as a part-time seasonal employee. She
eventually acquired full-time status in 1990. Phillips was assigned as
a full-time park ranger to the Blue Ridge Parkway, North Carolina.
Phillips' allegations arose from conflicts experienced with her col-
league and intermittent supervisor Morris.

Phillips filed two complaints with an Equal Employment Opportu-
nity Commission (EEOC) counselor during her tenure as a park
ranger. On September 21, 1993, Phillips complained that Morris dis-
criminated against her on the basis of sex. Apparently, three days
prior, Morris assigned a male employee to direct traffic during a bicy-
cle race when she was assigned to work at a kiosk collecting money
from campers. On October 29, 1993, the parties entered into an "In-
formal Resolution Agreement" in which Morris was formally warned
against discriminatory treatment toward Philips. The supervising
ranger who had promulgated the warning included several prior inci-
dents in which he believed Morris discriminated against Phillips in
her employment.3

On November 25, 1993, Morris requested that a male park ranger
respond to an arson incident on park property rather than calling Phil-
lips to respond. (J.A. at 502.) Phillips subsequently withdrew from the
Informal Resolution Agreement. On December 10, 1993, Phillips' ini-
tial administrative complaint, encompassing both the kiosk/traffic
incident and the arson incident, was formally filed under docket num-
ber FNP-94-034. (J.A. at 496-97.)

Again, the Park Service responded and declared that Morris'
actions were clearly and unequivocally discriminatory toward Phil-
lips. Morris was suspended two days without pay as the Park Service
_________________________________________________________________

3 Although the formal warning did not specify the basis of the discrimi-
nation, the supervising ranger mentioned the personality clash between
Morris and Phillips and that Phillips should suffer no disparate treatment
on account of her gender. (Joint Appendix [J.A.] at 48, 442.)

                    3
deemed his actions against Phillips, concerning the arson incident, as
insubordinate.4

The EEOC informed Phillips by letter on June 13, 1994, of the "ac-
cepted allegations." She was directed to advise the EEOC counselor
within five (5) calendar days if she had concerns or questions about
how the allegations were stated. She did not respond. However, the
magistrate judge accepted Phillips' contention that she never received
the letter and therefore could not respond to it in a timely manner.
(J.A. at 450.)

In August 1994, the EEOC proceeded to schedule its remaining
investigation. Phillips retained counsel at this point and unsuccess-
fully attempted to expand the scope of her complaint beyond the two
aforementioned incidents. Phillips requested that the EEOC office
consider conflicts with Morris which occurred prior to the two 1993
incidents which comprised her formal complaints.

The EEOC office distributed its report of investigation on Decem-
ber 5, 1994. Phillips waived her right to a formal hearing and
requested a final department decision. (J.A. at 539.) The Secretary did
not render a final decision because Phillips filed the instant case in
district court on October 31, 1995. Pursuant to 29 C.F.R.
§ 1614.107(c), case number FNP-94-034 was dismissed.

In order to initiate a second administrative complaint, Phillips con-
tacted an EEOC counselor on or about September 15, 1994. (J.A. at
540-551.) This complaint was filed under docket number FNP-95-
010, and raised, inter alia, the arson incident and the following:

          1. That Phillips received incorrect information during pre-
          complaint counseling regarding relief available under
          discrimination complaints;

          2. That Phillips was fraudulently induced to sign an infor-
          mal resolution agreement;
_________________________________________________________________
4 The magistrate judge correctly points out in his Order of June 25,
1997 that both parties noted that this action was later rescinded by an
Administrative Law Judge. (J.A. at 450.)

                    4
          3. That Phillips was not called out about the arson incident
          in November 1993;

          4. That Phillips received insufficient notice in August
          1994 of the pending investigation regarding her com-
          plaint;

          5. That the issues in Phillips' first complaint were defined
          too narrowly;

          6. That the Secretary attempted to muddle the issues in
          Phillips' complaint through a mailing on September 7,
          1994;

          7. That the Secretary attempted to intimidate Phillips
          through that same mailing; and

          8. That Phillips was not compensated for overtime earned
          during the pay period which ended August 6, 1994. 5

The remaining allegations were dismissed for failure to state a
claim in accordance with 29 C.F.R. § 1614.107(a). (J.A. at 452.) By
letter dated August 28, 1995, the Secretary stated that the decision to
dismiss the first seven allegations is the "final Departmental decision
regarding this matter." Subsequently, the instant complaint was filed
October 31, 1995.

II.

Federal Rule of Civil Procedure 12(b)(6) provides that dismissal is
appropriate where the plaintiff "fail[s] to state a claim upon which
relief can be granted." A district court must consider the complaint in
the light most favorable to the plaintiff, assuming its allegations to be
true. Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984); Mylan
Lab. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993).
_________________________________________________________________
5 The Secretary accepted allegation eight (8) for processing, and Phil-
lips advised the magistrate judge that she was no longer pursuing that
claim. (J.A. at 452.)

                    5
Although the court is required to assume that the allegations are
true, it does not need to assume that a plaintiff"can prove facts that
[are] not alleged or that the defendant ha[s] violated the ... law ... in
ways that have not been alleged." Estates Contr. v. Miller & Smith
Holding Co., 14 F.3d 213, 221 (4th Cir. 1994) (citation omitted).

As set out further in Rule 12(b)(6), if matters outside the pleadings
are presented to and not excluded by the court, the motion shall be
treated as one for summary judgment and disposed of as provided by
Fed.R.Civ.P. 56. See Anheuser-Busch v. Schmoke , 63 F.3d 1305, 1311
(4th Cir. 1995), vacated on other grounds, 517 U.S. 1206 (1996); and
see also Wilson-Cook Med., Inc. v. Wilson, 942 F.2d 247, 252 (4th
Cir. 1991).

Under Fed.R.Civ.P. 56(c), summary judgment is appropriate if the
pleadings show there is no genuine issue as to any material fact and
the moving party is entitled to judgment as a matter of law. The party
seeking summary judgment bears the initial burden of showing the
absence of any issues of material fact. Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986); see also Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986).

A district court's grant of summary judgment is reviewed de novo.
Nguyen v. CNA Corp., 44 F.3d 234, 236-37 (4th Cir. 1995). In
reviewing the supported underlying facts, all inferences must be
viewed in the light most favorable to the party opposing the motion
to determine whether any material issues of fact exist for trial. Id.

III.

The magistrate judge determined that Phillips' complaint alleged
two causes of action. First, that Phillips suffered"gender discrimina-
tion" in the form of disparate treatment and/or a"hostile workplace,"6
and second, "retaliation" in response to Phillips' first complaint. The
_________________________________________________________________
6 The magistrate judge's Order of June 25, 1997, acknowledged that
Phillips had failed to raise this claim in either EEOC complaint, and
therefore the matter is not properly before the Court. The magistrate
judge notes the issue's inclusion to provide a thorough analysis. (J.A. at
455, fn.4.)

                     6
magistrate judge outlined that Phillips' complaint alleged discrimina-
tory treatment in regard to (1) job and duty assignments, (2) refusal
to train, (3) assignment of equipment, (4) false allegations of miscon-
duct, and (5) other terms and conditions of employment. (J.A. at 455.)
Further, his Order recognized that Phillips' administrative remedies
were exhausted on the aforementioned claims and noted that Para-
graph Six (6) of the complaint reiterates that Phillips filed a timely
formal charge of sex discrimination on December 10, 1993.

The magistrate judge was persuaded by the Secretary's argument.
The Secretary contended that the formal charge filed and described
above was much narrower than the broad allegations in Phillips' com-
plaint. Further, Phillips' administrative remedies were exhausted only
as to those allegations present in her first complaint, which were the
kiosk/traffic incident and the arson incident. The magistrate judge
held that, as to any further incidents or categories of discriminatory
treatment, Phillips had clearly failed to exhaust the administrative
remedies available to her, and on this basis, the broader allegations
must be dismissed. (J.A. at 455-56.) See, e.g., Brown v. General Ser-
vices Administration, 425 U.S. 820, 832 (1976).

The magistrate judge properly based his finding also on the holding
of Evans v. Technologies Applications & Serv. Co., 80 F.3d 954 (4th
Cir. 1996). This Court set forth in Evans that "only these discrimina-
tory claims stated in the initial charge, those developed by reasonable
investigation of the original complaint may be maintained in a subse-
quent Title VII lawsuit." Evans, 80 F.3d at 963.

The magistrate judge adhered to the proposition that the strict time
requirement for notifying an EEOC counselor is intended to afford
proper notice to the employing agency so that the agency can thor-
oughly and carefully investigate those claims while they are fresh. See
Zipes v. TransWorld Airlines, 455 U.S. 385, 397 (1982). The lower
court herein held that this time requirement is intended to prevent the
litigation of stale claims and that those claims Phillips asserted against
Morris from 1990-92 were stale. Also, Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e-2(a)(1), makes it "an unlawful
employment practice for an employer ... to discriminate against any
individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual's race, color,

                     7
religion, sex or national origin." Further, 42 U.S.C. § 16(a) provides
that

          All personnel actions affecting employee ... in executive
          agencies ... shall be made free from any discrimination
          based on race, color, religion, sex or national origin.

The magistrate judge found that there was no adverse personnel
action taken against Phillips. Further, the lower court found that there
was no adverse action even if it could consider the broader allegations
of the second EEOC complaint. The magistrate judge held that Phil-
lips' conflict with Morris was promptly and unequivocally addressed
by the Park Service as the Secretary's employee. Although an Admin-
istrative Law Judge determined that the ultimate actions taken against
Morris were extraordinary under the circumstances, there is no doubt
that the Park Service acted promptly on Phillips' behalf.

Turning to Phillips' "hostile workplace" claim, the court below
determined that the sum of Phillips' complaints would not pass mus-
ter under summary judgment standards. Following the United States
Supreme Court's instructions in Harris v. Forklift Systems, Inc., 510
U.S. 17, 21-22 (1993), and Meritor Savings Bank v. Vinson, 477 U.S.
57, 65 (1986), only conduct that is persuasive and serious is sufficient
to state a hostile workplace claim. We agree with the magistrate judge
that the Park Service's actions fall short of the behaviors envisioned
by Harris and Vinson.

Finally, we also agree that Phillips' claim of retaliation is without
merit. In order to establish a prima facie claim of retaliation, Phillips
must show that: (1) Phillips was engaged in a protected activity, (2)
the Park Service took some adverse action against her, and (3) a
causal connection existed between the protected activity and the
adverse action. Ross v. Communications Satellite Corp., 759 F.2d
355, 365 (4th Cir. 1985), accord, McNairn v. Sullivan, 929 F.2d 974,
980 (4th Cir. 1991).

The magistrate judge correctly concluded that Phillips met the first
element, through the filing of the EEOC complaint, but could not
meet the second and third elements. The lower court specifically
found that Phillips failed to demonstrate a material fact regarding

                     8
whether the Secretary took any adverse action against her and
whether a causal connection existed between the filing of the EEOC
complaint and the alleged adverse action.

We concur with the lower court's finding that, although Phillips
can show that Morris treated her differently after the filing of the ini-
tial EEOC complaint, the alleged conduct is insufficient to demon-
strate an "adverse action" for purposes of a retaliation claim. Hetzel
v. County of Prince William, 89 F.3d 169, 171 (4th Cir. 1996); and
Hopkins v. Baltimore Gas and Electric Co., 77 F.3d 745, 754 (4th Cir.
1996).

IV.

Upon consideration of the record, briefs, and oral argument, we
affirm for those reasons adequately stated by the magistrate judge in
his memorandum opinion, Helen L. Phillips, v. Bruce Babbitt, Secre-
tary of the Interior, No. 35-CV-131 (W.D.N.C. June 25, 1997).

AFFIRMED

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