UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ANN L. GILL,
Plaintiff-Appellee,

v.                                                                   No. 96-2172

SYSTEM PLANNING CORPORATION,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Albert V. Bryan, Jr., Senior District Judge.
(CA-95-1683-A)

Argued: July 9, 1997

Decided: August 25, 1997

Before WILKINS, HAMILTON, and WILLIAMS, Circuit Judges.

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Reversed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Peter Stephen Saucier, KOLLMAN & SHEEHAN, P.A.,
Baltimore, Maryland, for Appellant. Linda Marie Jackson, CHARL-
SON & BREDEHOFT, P.C., Reston, Virginia, for Appellee. ON
BRIEF: Clifford B. Geiger, KOLLMAN & SHEEHAN, P.A., Balti-
more, Maryland, for Appellant. Elaine C. Bredehoft, John M. Brede-
hoft, CHARLSON & BREDEHOFT, P.C., Reston, Virginia, for
Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

System Planning Corporation (SPC) appeals an order of the district
court denying its motion for judgment as a matter of law after a jury
awarded compensatory damages to Ann L. Gill on her claims of retal-
iation in violation of Title VII, see 42 U.S.C.A. § 2000e-3(a) (West
1994). Because we conclude that the jury verdict is not supported by
substantial evidence, we reverse.

I.

SPC conducts research and development for the federal govern-
ment, primarily as a defense contractor. During the spring and sum-
mer of 1994, when the events relevant to this litigation transpired,
Gill was employed in SPC's Security and Information Systems
Department (SISD), where her duties consisted of obtaining security
clearances for SPC personnel and processing visitor requests. Addi-
tionally, Gill had been trained as a "LAN mentor," a person who
could assist others with the operation of a computer network impor-
tant to SPC's business. Although Gill regularly supervised other
employees, her duties were primarily clerical.

Beginning in 1990, SPC found it necessary to reduce its work force
significantly in response to decreases in federal defense spending. As
part of this process, in early 1994 SPC employed a consultant, Dorsey
Clement, to review the structure and operation of SISD. At that time,
the department consisted of six people, including Gill; all were aware
that the size of the department would be reduced in an effort to pro-
mote efficiency and cost-effectiveness. After conducting her review,
Clement recommended that SISD be reorganized to consist of three
new positions: A facilities security officer (FSO), an information sys-
tems security officer, and a document control specialist. All other
positions in SISD would be eliminated.

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Linda Easley, who was responsible for oversight of SISD,
announced the availability of the FSO position in early May. Several
individuals, including Gill and her immediate supervisor, Phyllis
Moon, expressed an interest in the position. Easley interviewed Gill,
Moon, and one other person before awarding the post to Moon in
mid-June. Gill protested Moon's promotion, insisting that Moon was
not qualified to be FSO and that she had been selected only because
of her race. Gill expressed these concerns to personnel in SPC's
human resources department, to Easley, to Easley's supervisor, and to
Moon herself and informed them of her intent to file a charge of racial
discrimination. Thereafter, Easley--who had previously been friendly
to Gill--began to treat her in a "cold" and"businesslike" manner. J.A.
202.

After Easley transferred SISD employees to the remaining new
positions recommended by Clement and two other SISD employees
voluntarily resigned, Gill was left as the only member of the depart-
ment without a position. When Easley met with Gill to inform her of
this situation, she offered Gill a security-related position in another
department. Gill declined the offer, stating that she did not wish to
work there. Gill also refused a secretarial position before reluctantly
agreeing to serve as a facilities assistant. Easley offered Gill that post
because it entailed implementing plans to relocate a large number of
SPC employees, a task with which Gill had previously demonstrated
some skill. Her pay, benefits, and grade remained the same.

After the meeting, Gill went home and remained on sick leave for
two weeks, so traumatized by the employment change that she
became physically ill. Gill's condition worsened when she was
informed that security files had been removed from her office in her
absence.1 Gill's physician prescribed medication to alleviate her
symptoms.

During the ensuing weeks, several incidents convinced Gill that she
was no longer wanted at SPC. For example, upon reporting to her new
position, Gill found herself in an office next to Easley and discovered
that her duties consisted primarily of maintaining conference room
_________________________________________________________________
1 Gill claims that her office was"cleaned out," but the record indicates
that only the security files were removed.

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supplies, packing boxes, and answering the telephone. And, although
Gill had hoped to continue her activities as a LAN mentor, the com-
puter in her new office was not powerful enough to support the LAN
network. Shortly thereafter, Moon asked Gill to review some visitor
requests while Gill was answering telephone calls at the front desk.
Upon learning what Gill was doing, Easley instructed Moon to take
the visitor requests away, stating that Gill no longer possessed the
requisite security clearance. Moon did so, causing Gill to burst into
tears. Gill also was not informed of a staff meeting that was
announced while she was away on sick leave.

Almost immediately after her transfer, Gill began to seek employ-
ment elsewhere. Because SPC could not charge the expenses of her
new position to any defense contract, Gill was concerned that SPC
might lay her off in order to reduce its overhead expenses, a fear
heightened by the fact that her responsibilities had been significantly
reduced. Within a few days, Gill received an offer of employment
from another company as an assistant FSO. Although she initially
declined the offer because the salary was $4,000 less than her salary
with SPC, Gill changed her mind after she observed a draft of a mem-
orandum listing SPC employees that did not include her name--an
incident Gill describes in her brief as "a final cumulative blow." Brief
for Appellee at 16.

After pursuing her administrative remedies, Gill filed this action in
the district court alleging federal causes of action for discriminatory
failure to promote and retaliation against SPC, see 42 U.S.C.A.
§§ 2000e-2(a), 2000e-3(a) (West 1994), and several state-law claims
against SPC and Easley. The district court granted judgment to the
defendants on Gill's state-law claims at various stages in the litiga-
tion, leaving only the federal issues for the consideration of the jury.
The jury concluded that SPC had not discriminated against Gill, but
returned a verdict in Gill's favor on her retaliation claims and
awarded $80,000 in compensatory damages. After denying SPC's
motion for judgment as a matter of law or for a new trial, the district
court awarded attorneys' fees of $61,459.14. SPC now appeals.

II.

SPC primarily contends that the district court erred in denying its
motion for judgment as a matter of law. We review de novo the denial

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of a motion for judgment as a matter of law to "determine whether
substantial evidence exists upon which the jury could find for the
appellee." Benedi v. McNeil-P.P.C., Inc., 66 F.3d 1378, 1383 (4th Cir.
1995). Thus, "[t]he question is whether a jury, viewing the evidence
in the light most favorable to [Gill], could have properly reached the
conclusion reached by this jury." Benesh v. Amphenol Corp. (In re
Wildewood Litigation), 52 F.3d 499, 502 (4th Cir. 1995).

Gill's claims that SPC retaliated against her in violation of Title
VII for pursuing a charge of racial discrimination rest on two distinct
but factually related theories. First, Gill maintains that SPC retaliated
against her by eliminating her position in SISD and transferring her
to another position. Second, she argues that SPC constructively dis-
charged her in retaliation for her threats to pursue charges of racial
discrimination; the constructive discharge allegedly was accom-
plished through the elimination of her original position, the transfer,
and the poor treatment she received after the transfer. We conclude,
however, that the evidence in the record is insufficient to allow a
rational jury to find in favor of Gill on either of her retaliation claims.

In order to establish a prima facie case of retaliation, a plaintiff
"must show that (1) he engaged in protected activity; (2) his employer
took adverse employment action against him; and (3) a sufficient
causal connection existed between his protected activity and his
employer's adverse employment action." Hopkins v. Baltimore Gas &
Elec. Co., 77 F.3d 745, 754 (4th Cir.), cert. denied, 117 S. Ct. 70
(1996). The burden of production then shifts to the employer to artic-
ulate a legitimate, nonretaliatory reason for the adverse employment
action. See Johnson v. University of Wisconsin-Eau Claire, 70 F.3d
469, 479 (7th Cir. 1995). Finally, the plaintiff must persuade the fact-
finder that the asserted reason for the adverse employment action is
a mere pretext and that the true reason for the action was retaliation.
See id.

Gill's first claim of retaliation--based on the elimination of her
position in SISD and her subsequent transfer--must fail because,
even assuming that she can establish a prima facie case of retaliation,2
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2 The validity of this assumption is by no means clear. For example, it
is questionable whether Gill--who was transferred to a different position

                     5
SPC articulated a legitimate, nonretaliatory reason for its actions
which Gill has failed to rebut. As Easley explained during her testi-
mony, Gill's services were no longer necessary in SISD because her
responsibilities, which had been primarily clerical and administrative,
could be performed by computer. Our review of the record reveals no
evidence to refute this explanation for the decision to transfer Gill to
another department. Accordingly, substantial evidence does not exist
to support a determination that SPC's asserted reason for Gill's trans-
fer was mere pretext for retaliation, and the district court erred in
refusing to grant SPC's motion for judgment as a matter of law on
this claim.

Gill's constructive discharge claim is similarly unsupported by the
evidence in the record. In order to prove that she was constructively
discharged, Gill must show that SPC made her working conditions
objectively intolerable in a deliberate attempt to force her to resign:

           The doctrine of constructive discharge protects an
          employee from a calculated effort to pressure him into resig-
          nation through the imposition of unreasonably harsh condi-
          tions, in excess of those faced by his coworkers. The
          employee is not, however, guaranteed a working environ-
          ment free of stress. Dissatisfaction with work assignments,
          a feeling of being unfairly criticized, or difficult or unpleas-
          ant working conditions are not so intolerable as to compel
          a reasonable person to resign.

Carter v. Ball, 33 F.3d 450, 459 (4th Cir. 1994) (citations & internal
quotation marks omitted).

The record clearly establishes that Gill was unhappy with her
working conditions to the point that she suffered physical symptoms
requiring medical treatment. However, Gill's reaction to her working
conditions is immaterial. See Bristow v. Daily Press, Inc., 770 F.2d
_________________________________________________________________
carrying the same grade, pay, and benefits--suffered an "adverse
employment action." See Hopkins, 77 F.3d at 755 (suggesting that an
employee whose position was eliminated during a reduction in force but
who could have continued his employment in a different position did not
suffer an adverse employment action).

                     6
1251, 1255 (4th Cir. 1985) (explaining that an employee's "unreason-
ably sensitive" reaction to the work environment does not provide
proof of constructive discharge (internal quotation marks omitted)).
Rather, the pertinent question is whether there is substantial evidence
to support a finding that Gill's working conditions were objectively
unreasonable. Gill has not satisfied this standard. First, as discussed
above, Gill's transfer--which she characterizes as a demotion--does
not alone prove that her working conditions were unreasonable. Gill
experienced no loss of pay, grade, or benefits. And, the other inci-
dents of which she complains, while perhaps annoying or unpleasant,
are not so intolerable that a reasonable person would feel compelled
to quit. Moreover, Easley's efforts to find another position for Gill
after her security position was eliminated belie the notion that SPC
intended to force Gill to resign. We therefore conclude that substan-
tial evidence does not support the jury verdict for Gill on her claim
that SPC retaliated against her by means of a constructive discharge.
Thus, the district court erred in refusing to grant SPC's motion for
judgment as a matter of law on this count.

III.

Because the evidence produced in support of Gill's claims of retali-
ation is not sufficient to support the verdict, we determine that the dis-
trict court erred in denying SPC's motion for judgment as a matter of
law. Accordingly, we reverse. Our conclusion on this point renders
consideration of SPC's other arguments on appeal unnecessary, but
the award of attorneys' fees must also be vacated in light of our hold-
ing.

REVERSED

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