UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ROSE ANNE YOUNG,
Plaintiff-Appellant,

v.
                                                                        No. 97-2066
TOGO D. WEST, Jr., Secretary of the
Army,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
James C. Cacheris, Senior District Judge.
(CA-96-1405-A)

Argued: January 26, 1998

Decided: June 16, 1998

Before WILKINSON, Chief Judge, and HAMILTON and
MICHAEL, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Brian Wayne Cubbage, PALEOS & KRIEGER, P.C.,
Alexandria, Virginia, for Appellant. Captain Michele Edwards Wil-
liams, Litigation Division, DEPARTMENT OF THE ARMY, Arling-
ton, Virginia, for Appellee. ON BRIEF: Thomas M. Ray, Special
Assistant United States Attorney, Alexandria, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Rose Anne Young appeals from the district court's grant of sum-
mary judgment in favor of her former employer, the United States
Army, on (among other things) her claim that she was fired in retalia-
tion for filing a Title VII complaint. The court rejected Young's Title
VII retaliatory discharge claim on the ground that Young was not an
employee of the Army at the time she said she was fired. The court
reached this conclusion because an administrative law judge (who
reviewed Young's claim that she was constructively discharged from
the civil service) found that Young had resigned her position with the
Army two days prior to her alleged firing. The district court held that
it was bound by this administrative finding. Young argues that it was
improper for the court to defer to this finding when evaluating her
Title VII retaliatory discharge claim and, therefore, the court was
wrong to hold that she was not an Army employee on the date she
claims she was fired. We agree that the court should not have deferred
to the prior administrative finding because Young was entitled to de
novo consideration of all issues of fact underlying her Title VII retal-
iatory discharge claim. However, we conclude that Young still failed
to forecast proof that would show she was an Army employee at the
time she was allegedly fired. A careful review of the record reveals
that Young did not dispute that she failed to take the proper steps to
revoke her prior resignation. Accordingly, we affirm the district
court's grant of summary judgment for the Army on Young's Title
VII claim.

I.

Young, a civil servant, worked at the Pentagon as an administrative
assistant. On August 3, 1993, Young submitted her written resigna-
tion, to be effective August 17, on a "request for personnel action"
form. After hearing of this, Young's supervisor, Colonel (now Briga-

                    2
dier General) Robert L. Nabors tried unsuccessfully to dissuade her
from resigning. On August 17 Richard Edelman, a high level civilian
Army employee, received Nabors' permission to speak with Young
about delaying her decision to resign. Edelman convinced Young to
take two weeks off before deciding whether to leave the Army.
Although Edelman had not mentioned the leave idea to Nabors
beforehand, Nabors agreed (when talking with Edelman the next day)
to allow Young to go on leave from August 17 to August 30 to think
about her decision.

A federal employee may rescind her resignation at any time before
the end of the day that it goes into effect. According to Edelman, he
told Young during their August 17 conversation that if she wanted to
go on leave she would have to contact the civilian personnel office
(CPO) in order to withdraw her resignation and request annual leave.
In fact, Edelman testified, he informed Young that only she could
contact the CPO to rescind her resignation and go on leave. In her
deposition Young said that Edelman never told her she had to with-
draw her own resignation or put in for annual leave; Edelman, she
said, told her that he would take care of it. However, Young offered
no evidence to show that Edelman could have withdrawn her resigna-
tion for her or that (even if Edelman could have rescinded her resigna-
tion) he did not do so for discriminatory reasons. Young never
contacted the CPO to withdraw her resignation or to request leave on
or after August 17.

However, when Young did not return to work after August 17 (a
Tuesday), the Army processed a timecard for Young with 24 hours
(3 days) of annual leave for that week. Federal employees cannot take
leave after they resign, so Young's August 3 written resignation
request either did not take effect on the stated date, August 17, or the
CPO made a mistake when it paid Young for those 24 hours of leave.
After Young was terminated, the Army processed a corrected time-
card that retroactively credited 24 hours of leave back to Young.

On August 24 Young called Nabors and the deputy director of her
department and informed them that she was "not coming back." Con-
cluding that Young had resigned, Nabors took steps to have another
civilian employee, Denise Richards, fill Young's position with his
department. CPO employee Mary Laverty testified in deposition that

                    3
the Army accepts oral resignations, although it generally encourages
an employee to confirm resignation "with something in writing."
Young's expert on civil service employment practices confirmed by
affidavit that resignations may be oral, although he said that they are
most often followed up with paperwork.

Young admitted in her deposition that she called Nabors on August
24 and told him that she intended to resign. However, she testified
that she intended for her resignation to be effective August 30, when
she was due back from leave. Young's expert backed her up on this.
In his affidavit he said that it was reasonable to conclude from
Young's statement on August 24 that she meant she was "not coming
back" after her leave ended on August 30. Thus, he opined, Young
could have rescinded her oral resignation before its August 30 effec-
tive date.

In her deposition Young testified that she received a phone call
from Nabors regarding work-related matters on August 25. Young
said it was her impression from this conversation that she was still an
employee of the Army because Nabors treated her like an employee
throughout the phone call.

On the morning of August 26, Young appeared in Nabors' office
and told him that she wanted "that bimbo [Richards] . . . out of here"
because she (Young) was returning to work. Nabors informed Young
that she had resigned her position twice, on August 17 and August 24,
and that as far as he knew she was not an employee of the Army any-
more. Young then threatened to file an Equal Employment Opportu-
nity (EEO) complaint against Nabors, although it was not entirely
clear to him that she actually intended to do so until he heard from
the Army's EEO office later that afternoon. After this meeting, Young
went directly to the Army's EEO office to see about filing a com-
plaint against Nabors for harassment based on her sex, race, or
national origin.

Immediately after Young left his office, Nabors called CPO per-
sonnel to inform them of the verbal resignation and to ask if Young
was still an Army employee. The two CPO employees with whom
Nabors spoke, Laverty and Katie Covington, told Nabors that
Young's verbal resignation was effective and that he did not have to

                    4
allow her to rescind it. They also told him that Young's August 3
(written) resignation was binding as well. According to Nabors, his
calls to Covington and Laverty were requests for advice on Young's
employment status, not attempts to take adverse personnel action
against Young. However, Nabors did not inform either Covington or
Laverty that he had agreed to allow Young to go on leave effective
August 17. Nabors also admitted that in his conversations with Cov-
ington and Laverty he "asked that [Young's] resignation of 17 August
1993 be activated." Later that day (August 26) Nabors called Young
into his office and told her that he had checked with the CPO and
found that she was no longer an Army employee.

Meanwhile, at the time Nabors spoke with Covington and Laverty
on August 26, Young's written resignation request dated August 3
(which she never asked the CPO to revoke) was still being processed
by the CPO. In fact, that resignation had already been approved by
the CPO's personnel division and had been sent to the CPO's techni-
cal services division for entry into the Army database, the last step
necessary for it to become final. There was no evidence that the CPO
took any action to activate this resignation on or after August 26 other
than entering it into the Army database. Young's August 3 written
resignation, effective August 17, was finalized on August 27. Further,
according to Laverty, the CPO usually finalizes an employee's resig-
nation well after its effective date because "it takes time for that piece
of paper to make its way through the entire personnel office."

Young filed an EEO complaint alleging that due to her sex, race,
or national origin, she had been subjected to harassment and had been
denied an opportunity to revoke her resignation. The EEOC adminis-
trative law judge (ALJ) viewed Young's complaint as a "mixed case"
complaint because it alleged that Young had been involuntarily termi-
nated from the civil service, a claim that fell under the jurisdiction of
the Merit Systems Protection Board (MSPB). Thus, the ALJ at the
EEOC severed this involuntary termination claim from her harass-
ment claim and remanded the termination claim to the MSPB.

At an evidentiary hearing before an MSPB ALJ, Young testified
that she had not resigned on August 24. The ALJ did not credit
Young's testimony and decided that her oral resignation was effective
on that date. The MSPB ALJ determined that since Young had

                     5
resigned two days before she asked to rescind her resignation on
August 26, the Army was not obliged to allow Young to withdraw her
resignation. Therefore, the ALJ decided, Young had failed to prove
that her resignation was involuntary. The MSPB appeals board denied
Young's petition for review.

In the proceedings before the EEOC, Nabors was in charge of the
Army's responses to all document production requests. Nabors certi-
fied that no existing documents showed that the Army approved leave
for Young after August 17. Yet the CPO record keeper admitted in
her deposition that the Army had processed a timecard for Young for
the pay period ending August 21 with 24 hours of leave on it. Later,
the Army processed a "corrected" timecard that retroactively credited
these 24 hours of leave back to Young.

Nabors told the MSPB that he did not get involved with employee
timecards. But Nabors later admitted in his deposition that he some-
times signed civilian employees' timecards when their direct supervi-
sors were unavailable. Further, Richards (Young's replacement)
testified that she had Nabors sign both her timecard and Young's
timecard on August 19. In discovery the Army produced Richards'
timecard. However, the Army reported that Young's timecard was
missing from storage (its retention period had not yet expired). The
Army never produced this timecard.

Young sued the Army, alleging that: she had been harassed by
Nabors based on her sex, race, or national origin; she had been con-
structively discharged because of her sex, race, or national origin; and
she had been discharged in retaliation for engaging in activity pro-
tected by Title VII. Young brought all of these claims under Title VII
and did not appeal the MSPB decision.

The district court granted summary judgment to the Army on all
three of Young's Title VII claims. The court held that even though
Young had not appealed the MSPB decision, hers was a"mixed case"
that presented both MSPB claims and Title VII discrimination claims.
Holding that it was required to review "the discrimination claims de
novo and the other claims on the basis of the MSPB record," the court
proceeded to review Young's Title VII harassment claim de novo and
her Title VII retaliatory discharge and constructive discharge claims

                    6
based on the administrative record. Specifically, as to the retaliatory
discharge claim, the court declined to "review[that claim] de novo
because of the prior findings made by the [MSPB]" that Young
resigned her position with the Army on August 24, 1993. If the find-
ings stood, the court reasoned, then Young could not prove that she
was discharged in retaliation for her EEO complaint because she was
not an employee on August 26, 1993. After reviewing the record, the
court concluded that the ALJ's finding was not arbitrary or capri-
cious, was made in accord with procedures required by law, and was
supported by substantial evidence. Therefore, the district court held
that Young could not make out a prima facie case of retaliatory dis-
charge.

II.

A.

On appeal Young claims that the district court was wrong to grant
the Army's motion for summary judgment on her Title VII retaliatory
discharge claim.1 Young argues that the court improperly applied the
deferential standard of review reserved for MSPB appeals instead of
the de novo review it must afford all Title VII claims of discrimina-
tion. The Army contends, however, that the court correctly applied de
novo review to Young's "discrimination claims" and deferential
review to her "nondiscrimination claims." It just so happens, the
Army argues, that the same factual issue that was determinative of
Young's "nondiscrimination claim" that she was not involuntarily ter-
minated on August 24 was also dispositive of her"discrimination
claim" that she was discharged in retaliation for engaging in protected
activity on August 26. And, because there was no reason for the court
to disturb the MSPB ALJ's finding that Young voluntarily resigned
from the civil service on August 24, that fact controlled the district
court's de novo review of her retaliatory discharge claim. Here, the
_________________________________________________________________
1 Young also appeals the district court's grant of summary judgment on
her harassment claim (to which the court applied the proper, de novo
standard of review) and two of the court's evidentiary rulings. We have
considered Young's argument on the harassment claim and find it to be
without merit. Further, the court's evidentiary rulings were not an abuse
of its discretion.

                    7
Army's position is that the question of whether Young made a prima
facie case of retaliatory discharge (including the underlying factual
question whether she was an Army employee on August 26) was a
"discrimination claim" and that the question of whether Young was
involuntary terminated from the civil service (including the ALJ's
determination that she resigned August 24) was a"nondiscrimination
claim." This position misconstrues the plain language of the statute
governing review of mixed cases, misreads the district court's opin-
ion, and mischaracterizes Young's claim.

A district court has jurisdiction to review "mixed cases," which
involve both Title VII discrimination claims and civil service claims
appealed from the MSPB, under 5 U.S.C. § 7703. See Johnson v.
Burnley, 887 F.2d 471, 474 n.1 (4th Cir. 1989), vacated and appeal
dismissed; Rana v. United States, 812 F.2d 887, 888 n.1 (4th Cir.
1987). In such cases, the court reviews the Title VII claims and the
claims appealed from the MSPB separately. With regard to the MSPB
claims, the court must "review the record" and set aside any agency
findings or conclusions that are "arbitrary or capricious," "obtained
without procedures required by law," or "unsupported by substantial
evidence." 5 U.S.C. § 7703(c)(1)-(3). However, with regard to claims
of "discrimination brought under [Title VII] the employee applicant
shall have the right to have the facts subject to trial de novo." 5
U.S.C. § 7703(c) (emphasis added). Thus, quite contrary to the
Army's construction of § 7703(c), if Young's case presented both
Title VII discrimination claims and an appeal from an MSPB deci-
sion, it would not have been proper for the district court to allow an
MSPB ALJ's factual findings to control the court's de novo review
of the Title VII discrimination claims. Rather, the court would be
required to review de novo all the facts underlying the Title VII dis-
crimination claims when evaluating those claims, and then review the
findings of the MSPB ALJ deferentially when evaluating any claims
appealed from the MSPB. As a result, it would be possible for the
court to determine that Young created a genuine issue of fact that she
was an Army employee on August 26 for the purpose of her Title VII
retaliatory discharge claim and at the same time uphold the MSPB
ALJ's finding that Young voluntarily resigned from the Army on
August 24 for the purpose of the involuntary termination claim (if she
had appealed that claim from the MSPB).

                    8
The Army also misread the district court's opinion, which did not
even purport to engage in de novo review of Young's retaliatory dis-
charge claim. The court held that Young's case was a mixed case and
explicitly reviewed her retaliatory discharge claim as a "nondiscrimi-
nation claim." This was error. Title VII retaliatory discharge claims
are "discrimination" claims under§ 7703(c). See 42 U.S.C. § 2000e-
3 (Title VII provision prohibiting what we term"retaliatory dis-
charge" actually prohibits "discriminat[ion]" against employees for
protected activity); see, e.g., Holifield v. Reno, 115 F.3d 1555, 1566-
67 (11th Cir. 1997) (per curiam adopting district court opinion)
(reviewing retaliatory discharge claim de novo under§ 7703(c));
Williams v. Rice, 983 F.2d 177, 181 (10th Cir. 1993) (same). Indeed,
all Title VII claims are "discrimination" claims. Therefore, even if
Young's complaint had presented a mixed case, the court applied the
wrong standard of review to her retaliatory discharge claim.

However, the district court was wrong to characterize Young's case
as a mixed case in the first place. Young did not appeal the MSPB
decision that she had voluntarily resigned on August 24. She simply
brought a Title VII claim in federal court, alleging (among other
things) that she was discharged in retaliation for engaging in activities
protected by Title VII. A federal employee is not required to appeal
a prior MSPB decision or have adverse MSPB factfindings set aside
in order to bring a Title VII claim in federal court. Such a requirement
would place a federal employee who goes to the MSPB in a worse
position than a private employee who goes to the EEOC. This would
be contrary to § 7703(c), which, by providing a trial de novo on Title
VII claims in mixed cases, requires that civil servants be treated
exactly like other Title VII plaintiffs. Cf. Johnson, 887 F.2d at 477.
MSPB factfinding is accorded no weight when a district court evalu-
ates a federal employee's Title VII claims. Any other rule would nul-
lify a federal employee's right to have her Title VII claims decided
in federal court.

Therefore, despite the Army's attempt to focus on the MSPB deci-
sion, review of that decision simply was not an issue in this case. We
hold that the district court erred by reviewing the MSPB ALJ's deci-
sion under 5 U.S.C. § 7703(c)(1)-(3) when considering whether
Young's Title VII claim for retaliatory discharge could survive sum-
mary judgment. Specifically, the court should not have deferred to the

                     9
MSPB's finding that Young resigned on August 24, 1993, when it
(the court) evaluated Young's evidence that she was discharged on
August 26 in violation of Title VII. In determining whether Young
was an employee of the Army on August 26, the court should have
considered her evidence under the same standard for summary judg-
ment used in any Title VII case.

B.

We may still affirm the district court's grant of summary judgment
on Young's Title VII retaliatory discharge claim if it was proper
under the correct standard of review. Summary judgment is a purely
legal question that we may decide by conducting our own review of
both parties' evidence.

Summary judgment is proper when there is no genuine issue as to
any material fact, and the moving party is entitled to judgment as a
matter of law. See Fed. R. Civ. P. 56(e). In order to avoid summary
judgment on a retaliatory discharge claim, an employee must first
establish a prima facie case of retaliation. To do so she must first offer
evidence from which a reasonable jury could find that (1) she
engaged in protected activity, (2) after which she was fired, and (3)
there was a causal link between her protected activity and her termi-
nation. See Hopkins v. Baltimore Gas & Elect. Co., 77 F.3d 745, 754
(4th Cir.), cert. denied, 117 S. Ct. 70 (1996); McNairn v. Sullivan,
929 F.2d 974, 980 (4th Cir. 1991). Once the employee makes out a
prima facie case of retaliation, the burden of persuasion then shifts to
her former employer, who must offer evidence of a legitimate, non-
discriminatory reason for her termination. See Williams v. Cer-
beronics, Inc., 871 F.2d 452, 457 (4th Cir. 1989). When the employer
produces such a reason, the burden shifts back to the employee, who
must produce evidence that the employer's proffered reason for her
termination was merely pretext for intentional discrimination. See id.
If the plaintiff presents evidence to create a material issue of fact on
each element of the prima facie case and on the issue of pretext and
discrimination, then summary judgment is inappropriate.

We conclude that Young presented ample evidence from which a
reasonable jury could find that she established a prima facie case of
discrimination. To establish prong one (protected activity) she offered

                     10
evidence that she told Nabors on the morning of August 26, 1993, that
she would file an EEO complaint against him. Although Nabors
claimed that he did not know that Young would act on her threat, he
admitted that she "threatened [him] with an EEO complaint" that
morning. Further, the Army does not contest that Young visited its
EEO office to see about filing a complaint immediately after leaving
Nabors's office. From this, a jury could find that Young told Nabors
she planned to file an EEO complaint against him, which is protected
activity, see, e.g., Carter v. Ball, 33 F.3d 450, 460 (4th Cir. 1994).

With regard to prong two (termination after protected activity),
Young adduced evidence that she was an employee of the Army on
August 26, 1997, when she engaged in her protected activity and that
she was terminated later that day (effective August 27). The Army
does not contest that although Young initially planned to resign on
August 17, Edelman convinced her to revoke her resignation and go
on leave before the resignation became effective. Also, the Army's
own record keeper admitted that the Army credited Young (at least
initially) for 24 hours of annual leave after August 17 for the August
21 pay period (possibly corresponding to Wednesday through Friday,
August 18 to 20). Further, Young's expert testified that a federal
employee cannot take annual leave after she has resigned. Thus,
Young presented some evidence that she was still an Army employee
after August 17 because she agreed to revoke her resignation and go
on leave.

The Army contends, however, Young was not an Army employee
on August 26 because she resigned on August 24. We agree that there
was substantial evidence to support that contention. But we do not sit
as a jury. If Young offered sufficient evidence from which a reason-
able jury could find that she did not resign on August 24, she met the
second prong of her prima facie case. We conclude that Young's evi-
dence, read in the light most favorable to her, was sufficient to show
she was still an Army employee on August 26.

First, Young's evidence suggested that when she told Nabors on
August 24 that she was "not coming back" she meant she planned to
resign effective August 30. Young testified that she did not intend to
resign on August 24. Her expert confirmed this view when he opined
that it was only reasonable to conclude that Young intended to resign

                    11
effective August 30, after her leave expired. Further, the expert testi-
fied that in order for an oral resignation to be effective it usually must
be followed up with written documentation. Although the Army
sometimes accepted oral resignations, it had no documentation to con-
firm that Young had orally resigned on August 24.

Second, Young produced evidence that Nabors considered her an
Army employee on August 25, the day after he said she resigned.
Nabors telephoned Young on August 25 to speak about work-related
business. During the call he treated her like an employee and did not
indicate to her that he thought she had resigned.

Third, Young's evidence suggested that Nabors believed that her
purported August 24 resignation was not valid. Nabors admitted that
during his August 26 conversations with Laverty and Covington he
"asked that [Young's] resignation dated 17 August 1993 be acti-
vated." If Young had effected a valid oral resignation on August 24,
for which no documentation was necessary, there was no need to acti-
vate her earlier, written resignation. Moreover, it seems odd that
Nabors called Laverty and Covington to inform them of Young's oral
resignation on August 26, immediately after Young met with him
about returning to her job, rather than on August 24, when the resig-
nation supposedly occurred.

Fourth, Young produced evidence from which a jury could infer
that Nabors attempted to cover up the fact that he agreed to place her
on leave after August 17. Nabors was in charge of the Army's docu-
ment production efforts before the EEOC, and he certified that no
documents showed that Young was on leave after August 17. Yet,
Young received 24 hours of annual leave and the Army's own record
keeper admitted that there must be documentation for that. Nabors
also denied that he got involved with timecards, but Young's replace-
ment, Richards, said that Nabors had signed Young's timecard for the
week of August 21. Further, when Nabors called Covington and
Laverty on August 26 to ask whether Young was still an Army
employee, he did not inform them that he had placed Young on leave
after August 17.

Taken together, this evidence could lead a reasonable jury to con-
clude that Young did not orally resign on August 24. Therefore, she
met the second prong of her prima facie case.

                     12
Finally, Young also offered evidence to meet the third prong of her
prima facie case (causal link between termination and protected activ-
ity). On August 26 Nabors asked Covington and Laverty to activate
Young's August 17 resignation immediately after she (Young) threat-
ened Nabors with an EEO complaint. Here, the temporal proximity of
Young's threat and her termination by Nabors could, by itself, allow
a reasonable jury to find that Young's termination was causally linked
to her protected activity.

However, we also conclude that the Army offered a legitimate,
non-discriminatory reason for Young's termination. Even if Young's
evidence tended to prove that Nabors fired her on August 26 in retali-
ation for threatening him with an EEO complaint, the Army claims
that Young would have been terminated anyway because she did not
rescind her August 3 (written) resignation request before it became
effective on August 17.2 As a result of Young's failure to withdraw
her August 3 resignation request, her resignation was processed by
the Army as if she had never been placed on leave. It was simply too
late for Young to rescind the resignation on August 26; the resigna-
tion had gone into effect on August 17 and all that remained was mere
processing.3 Therefore, the Army has produced sufficient evidence to
convince a reasonable jury that Young would have been terminated
regardless of whether Nabors called the CPO and directed that her
written resignation be reactivated, because Young never requested
that the resignation be deactivated before its August 17 effective date.

Young has offered no evidence to rebut this claim by the Army or
to show that it was pretext for discrimination. Even if her evidence
suggested a cover-up on Nabors's part, this evidence is of no help to
_________________________________________________________________
2 This is true regardless of whether Edelman told Young on August 17
that she had to contact the CPO to cancel her resignation. Young offers
no evidence to suggest that Edelman was responsible for informing the
CPO about putting her on leave.
3 By August 26 the CPO had signed off on Young's resignation and
it was ready to be entered into the Army's database. The only act the
Army performed to effectuate her written resignation on or after August
26 was the perfunctory task of entering it into the database. Thus,
Young's resignation was finalized on August 27 without any further dis-
cretionary action from Nabors or the CPO on or after August 26.

                    13
her. No matter what Nabors did -- even if he did try to fire her on
August 26 -- it did not matter because she had already resigned on
August 17. Further, we see no significance in the fact that Young's
timecard was corrected after she was terminated. We attribute no sin-
ister reason to this, and Young suggests none. Most likely, after
Young's August 3 resignation finally wound its way through the
Army bureaucracy, someone realized that Young should not have
been on annual leave after the resignation's August 17 effective date
and credited the leave back to her.

Because we conclude that Young did not present evidence that the
Army's proffered legitimate reason for her termination was mere pre-
text for retaliation, we find that summary judgment for the Army on
Young's retaliatory discharge claim was proper. Therefore, the judg-
ment of the district court is

AFFIRMED.

                    14
