                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 17-1345


KESSLYN BRADE STENNIS,

                    Plaintiff - Appellant,

             v.

BOWIE STATE UNIVERSITY,

                    Defendant - Appellee.



Appeal from the United States District Court for the District of Maryland, at Greenbelt.
Roger W. Titus, Senior District Judge. (8:16-cv-01362-RWT)


Submitted: November 28, 2017                                Decided: December 27, 2017


Before GREGORY, Chief Judge, and KEENAN and DIAZ, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.


Nathaniel D. Johnson, White Plains, Maryland, for Appellant. Brian E. Frosh, Attorney
General of Maryland, Matthew P. Reinhart, Assistant Attorney General, Baltimore,
Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Kesslyn Brade Stennis appeals the district court’s order dismissing her complaint

raising retaliation claims against Bowie State University (“BSU”) pursuant to Title VII of

the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (2012), Title IX of the

Education Amendments of 1972, 20 U.S.C. §§ 1681 to 1688 (2012), and the Maryland

Fair Employment Practices Act (“FEPA”), Md. Code Ann., State Gov’t § 20-606(a)(1)(i)

(LexisNexis 2014). We vacate the district court’s order only as to Stennis’ claim under

Title IX that her department chair took several actions with the intent to deny her tenure

application and affirm the district court’s order in all other respects.

       We review de novo a district court’s dismissal of a complaint under Fed. R. Civ.

P. 12(b)(6), accepting factual allegations in the complaint as true and “draw[ing] all

reasonable inferences in favor of the [nonmoving party].” Kensington Volunteer Fire

Dep’t v. Montgomery Cty., 684 F.3d 462, 467 (4th Cir. 2012) (internal quotation marks

omitted). To survive a motion to dismiss, the complaint’s “[f]actual allegations must be

enough to raise a right to relief above the speculative level” and sufficient “to state a

claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555, 570 (2007).

       The district court analyzed Stennis’ complaint under the familiar McDonnell

Douglas 1 framework.      To establish a prima facie case of retaliation, 2 a plaintiff is



       1
           McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).


                                               2
required to “show (1) that she engaged in protected activity; (2) that her employer took an

adverse action against her; and (3) that a causal connection existed between the adverse

activity and the protected action.” Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d

562, 578 (4th Cir. 2015) (alterations and internal quotation marks omitted). We apply the

same standards in ruling on a Title IX retaliation claim that we do in ruling on a Title VII

claim. Preston v. Va. ex rel. New River Cmty. Coll., 31 F.3d 203, 207 (4th Cir. 1994); see

also Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 173-74 (2005) (holding that

Title IX prohibits retaliating against an individual for complaining of sex discrimination).

Maryland courts look to federal law interpreting Title VII in applying the FEPA. Haas v.

Lockheed Martin Corp., 914 A.2d 735, 742 (Md. 2007).

       Stennis contends that the district court erred in concluding that she failed to allege

that she engaged in protected activity under Title VII and FEPA. Title VII distinguishes

between two forms of protected activity: participation and opposition. Laughlin v.

Metro. Wash. Airports Auth., 149 F.3d 253, 259 (4th Cir. 1998).              “Activities that

constitute participation are outlined in the statute: (1) making a charge; (2) testifying; (3)

assisting; or (4) participating in any manner in an investigation, proceeding, or hearing



       2
          A Title VII plaintiff need not plead facts that constitute a prima facie case to
survive a motion to dismiss. McCleary-Evans v. Md. Dep’t of Transp., 780 F.3d 582,
584-85 (4th Cir. 2015). However, Stennis does not argue that the district court erred in
applying the prima facie standard. See Grayson O Co. v. Agadir Int’l LLC, 856 F.3d 307,
316 (4th Cir. 2017) (“A party waives an argument by failing to present it in its opening
brief or by failing to develop its argument—even if its brief takes a passing shot at the
issue.” (alterations and internal quotation marks omitted)).


                                              3
under Title VII.” Id. Here, Stennis complained to a BSU human resources representative

that Stennis was being retaliated against for investigating and reporting, at the department

chair’s direction, her students’ concerns that the chair was discriminating against them.

However, “[e]very Court of Appeals to have considered th[e] issue squarely has held that

participation in an internal employer investigation not connected with a formal EEOC

proceeding does not qualify as protected activity under the participation clause.”

Townsend v. Benjamin Enters., Inc., 679 F.3d 41, 49 (2d Cir. 2012); see also Laughlin,

149 F.3d at 259 (noting alleged protected activity occurred before complainant filed suit).

Stennis did not file her intake questionnaire with the EEOC until months after her report

to the human resources employee, after the chair had already recommended that she be

denied tenure and created the alleged hostile work environment. Thus, we conclude that

the district court correctly determined that Stennis did not engage in participation

activity.

       We similarly conclude that Stennis failed to allege that she engaged in opposition

activity.   We have “articulated an expansive view of what constitutes oppositional

conduct, recognizing that it encompasses utilizing informal grievance procedures as well

as staging informal protests and voicing one’s opinions in order to bring attention to an

employer’s discriminatory activities.” DeMasters v. Carilion Clinic, 796 F.3d 409, 417

(4th Cir. 2015) (internal quotation marks omitted). “Title VII is not a general bad acts

statute, however, and it does not prohibit private employers from retaliating against an

employee based on her opposition to discriminatory practices that are outside the scope

of Title VII.” Bonds v. Leavitt, 629 F.3d 369, 384 (4th Cir. 2011). Title VII and FEPA

                                             4
do not prohibit sex discrimination against students; rather, Title IX protects students from

sex discrimination. 20 U.S.C. § 1681(a); see also Md. Code Ann., State Gov’t § 20-901

(LexisNexis 2014) (prohibiting a state entity from discriminating on the basis of sex and

sexual orientation). Accordingly, we affirm the district court’s dismissal of Stennis’ Title

VII and FEPA claims. 3

       Stennis further contends that she suffered an adverse action because her

department chair tried (albeit unsuccessfully) to deny her tenure and that she suffered a

constructive discharge because of a hostile work environment created by the chair. To

state a constructive discharge claim, Stennis was required to allege “(1) the deliberateness

of [BSU’s] actions, motivated by [retaliatory animus], and (2) the objective intolerability

of the working conditions.” Freeman v. Dal-Tile Corp., 750 F.3d 413, 425 (4th Cir.

2014) (internal quotation marks omitted). Mere “dissatisfaction with work assignments,

a feeling of being unfairly criticized, or difficult or unpleasant working conditions are not

so intolerable as to compel a reasonable person to resign.” Honor v. Booz-Allen &

Hamilton, Inc., 383 F.3d 180, 187 (4th Cir. 2004) (internal quotation marks omitted).

       We conclude that the district court did not err in dismissing Stennis’ constructive

discharge claim. While Stennis contends that her work environment was intolerable, she

failed to plead any facts to support this contention. Instead, Stennis pled conclusory

assertions that she received threatening and intimidating emails and that the environment

       3
         Because we conclude that Stennis failed to allege that she engaged in a protected
activity under FEPA, we do not address the district court’s alternative holding that parts
of her FEPA claim were barred by the statute of limitations.


                                             5
was hostile.    See Williams v. Giant Food Inc., 370 F.3d 423, 434 (4th Cir. 2004)

(concluding allegations that plaintiff’s “supervisors yelled at her, told her she was a poor

manager and gave her poor evaluations, chastised her in front of customers, and once

required her to work with an injured back” failed to establish constructive discharge

claim). Moreover, the fact that BSU ultimately awarded Stennis tenure demonstrates that

it did not intend to force Stennis to resign.

       However, we find that the district court erred in concluding that the department

chair’s attempts to deny Stennis tenure failed to allege an adverse action. In order to

demonstrate that the chair’s actions were adverse, Stennis “must show that a reasonable

employee would have found the challenged action[s] materially adverse, which in this

context means [they] well might have dissuaded a reasonable worker from making or

supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. v. White, 548 U.S.

53, 68 (2006) (internal quotation marks omitted). An adverse action need not affect the

terms and conditions of employment. Id. at 64. However, there must be “some direct or

indirect impact on an individual’s employment as opposed to harms immaterially related

to it.” Adams v. Anne Arundel Cty. Pub. Schs., 789 F.3d 422, 431 (4th Cir. 2015).

       Stennis alleged that the department chair altered her job duties and reduced her

professional development opportunities, harming her professional standing and chances

to ultimately receive tenure, and further recommended denying her tenure application.

An employer may commit an adverse action by reducing its employee’s opportunities for

professional advancement. White, 548 U.S. at 69. Additionally, although “reassignment

of job duties is not automatically actionable,” a reassignment “should be judged from the

                                                6
perspective of a reasonable person in the plaintiff’s position, considering all the

circumstances.” Id. at 71 (internal quotation marks omitted). A reasonable professor in

Stennis’ position could have concluded that these actions were materially adverse.

“Tenure is a material condition of employment because it provides long-term job

security.” Tolbert v. Smith, 790 F.3d 427, 435 (2d Cir. 2015). It is reasonable to

conclude that a professor’s tenure application would be negatively affected if the chair of

her department opposed her application. Although Stennis obtained tenure despite the

chair’s negative recommendation, a reasonable employee could well be dissuaded from

reporting a charge of discrimination if she knew it could reduce her chances of ultimately

obtaining tenure.

       Accordingly, we vacate the portion of the district court’s order dismissing Stennis’

Title IX claim as it pertains to the department chair’s attempts to deny her tenure, and

remand for further consideration of this issue. We affirm the district court’s order in all

other respects. We dispense with oral argument because the facts and legal contentions

are adequately presented in the materials before this court and argument would not aid

the decisional process.



                                                              AFFIRMED IN PART,
                                                 VACATED IN PART, AND REMANDED




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