UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MARY ANNA GNADT,
Plaintiff-Appellant,

v.

ERNEST G. CASTRO; CASTRO FAMILY,
INCORPORATED, t/a Tino's Sports
                                                               No. 95-1369
Lounge, t/a Mama's Italian
Restaurant,
Defendants-Appellees.

EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Amicus Curiae.

On Remand from the United States Supreme Court.
(S. Ct. No. 95-1981)

Argued: June 5, 1997

Decided: July 10, 1997

Before RUSSELL, HAMILTON, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: John Michael Clifford, MCLEOD, WATKINSON &
MILLER, Washington, D.C., for Appellant. John Foster Suhre,
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Wash-
ington, D.C., for Amicus Curiae. Gregory Beckwith, PHILLIPS,
BECKWITH & HALL, Fairfax, Virginia, for Appellees. ON BRIEF:
Mona Lyons, MCLEOD, WATKINSON & MILLER, WASHING-
TON, D.C., for Appellant. John P. Rowe, Acting General Counsel,
Gwendolyn Young Reams, Associate General Counsel, Vincent J.
Blackwood, Assistant General Counsel, EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION, Washington, D.C., for Amicus
Curiae.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

We consider this case on remand from the Supreme Court. See
Gnadt v. Castro, 117 S. Ct. 1077 (1997). The sole question now at
issue is whether a former employee can prevail on a retaliation claim
against a former employer without proving that the alleged retaliatory
act had any effect on the employee. The district court held that an
employee could not prevail on a retaliation claim in this circumstance,
and we affirm.

In January 1992, while attending law school, Mary Anna Gnadt
began working part-time as a waitress and bartender at Tino's Sports
Lounge in Fairfax County, Virginia. By October 1993, Gnadt had
established a work schedule that included bartending during the day
on Sunday and on Monday nights, and waitressing on Wednesday
nights. But during that month, Tino's hired a new employee, Michael
Devine. To accommodate Devine's schedule, the manager of Tino's
-- Bernardo Terazzas -- informed Gnadt on October 15, 1993 that
her bartending duties would be switched to waitressing. When Gnadt
asked Terazzas why she could not continue behind the bar while
Devine acted as a waiter, Terazzas responded that it was "too tacky
to have a man as a cocktail waitress and a woman behind the bar."
The shifted responsibilities would have reduced Gnadt's wages by
about $2.00 an hour.

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Unhappy with the reassignment, Gnadt attempted to contact Tino's
owner, Ernest Castro, leaving messages at home and at work for him.
On October 17, 1993, she reached him and ascertained that although
there were no problems with her performance, the reassignment was
final. Upon learning this, Gnadt resigned from her employment at
Tino's. Less than a month later, she filed a charge of gender discrimi-
nation with the Fairfax County Human Rights Commission, which
forwarded the complaint to the Equal Employment Opportunity Com-
mission (EEOC).

When he heard of the discrimination charge, Castro made repeated
efforts to contact Gnadt by telephone. In a November 27, 1993 tele-
phone call, Castro angrily demanded to know what Gnadt thought she
was doing. Castro left messages on Gnadt's answering machine to
which she did not respond. Gnadt then asked a lawyer, Martin
Mooradian, for whom she worked part-time as a law clerk, to write
Castro requesting that he leave her alone.

On December 2, 1993, Castro left a message on an answering
machine at the home where Gnadt was housesitting, in which he said:

          If you want to pursue this . . . all I can tell you is I can fry
          you . . . . I can make life very miserable for you in this
          Northern Virginia area, especially in the legal field. I know
          a lot of lawyers and after I get through talking with them,
          your prospects for employment with any of them will be
          very, very, very slim.

Castro also telephoned Mooradian and told him that Castro knew
"just about every attorney in Fairfax and he was going to tell every
one of them that he knew [Gnadt] and about how unreliable and . . .
disloyal she was as an employee so that she would never get another
job as an attorney."

Mooradian testified that Gnadt's performance at the law firm suf-
fered during the period when she received Castro's telephone calls;
however, he could not rule out the possibility that other factors caused
this decline in performance. Gnadt testified her entire social life was
affected by the phone calls, that she was "scared to death" that Castro
"would really try to sabotage [her] attempts to find employment in

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Fairfax," and that she thought Castro's message "indicated that he
thought that he would be able to crucify me in court, so to speak."
Gnadt did not submit any other evidence that the telephone calls
affected her in any way. Moreover, Gnadt stated that she never sought
assistance from a psychiatrist, psychologist, counselor or any sort of
physical or mental therapy, or medication because of Castro's tele-
phone calls. She acknowledged that she had no knowledge that Castro
contacted any prospective employer or attempted in any way to
obstruct her ability to obtain employment. She conceded that during
and after the time she received the calls, she continued to attend law
school and maintain her previous good grade average, to work part-
time in the law firm, and to maintain her relationship with her boy-
friend. Indeed, in response to an interrogatory request, Gnadt did not
list a single activity of any kind that she was unable to perform as a
result of Castro's telephone calls.

Gnadt amended her discrimination charge to add a retaliation claim
and after the EEOC issued a right to sue letter, she filed suit in federal
court against Castro, Castro Family, Inc., t/a Mama's Italian Restau-
rant and Tino's Sports Lounge. In addition to a state law claim for
intentional infliction of emotional distress, Gnadt alleged that Castro
violated 42 U.S.C. § 2000e-2(a)(1) (1994) and 42 U.S.C. § 1981a
(1994) in discriminating against her on the basis of gender by altering
her work schedule and decreasing her pay and constructively dis-
charging her and that he violated 42 U.S.C. § 2000e-3(a) (1994) and
42 U.S.C. § 1981a in retaliating against her for filing a discrimination
charge.

The district court granted Castro judgment as a matter of law on
all four counts at the conclusion of Gnadt's case. In ruling on the
retaliation claim, the court assumed that a former employee, like
Gnadt, could bring a retaliation claim under Title VII against a former
employer. Gnadt appealed the entry of judgment against her on the
gender discrimination and retaliation claims.

We vacated the district court's judgment as to the discrimination
claim and remanded it for trial. See Gnadt v. Castro, 79 F.3d 1141
(4th Cir. 1996) (unpublished per curiam opinion). We held Gnadt's
appeal on the retaliation claim was foreclosed by our decision in
Robinson v. Shell Oil Co., 70 F.3d 325, 330 (4th Cir. 1995) (en banc),

                     4
in which we found former employees not entitled to the protection of
Title VII. That decision was subsequently reversed by the Supreme
Court. See Robinson v. Shell Oil Co., 117 S. Ct. 843 (1997) (holding
that "employees" under Title VII include former employees). The
Supreme Court then granted certiorari and vacated and remanded our
opinion in the case at hand so that we could reconsider it in light of
Robinson. See Gnadt v. Castro, 117 S. Ct. 1077 (1997).

Because, as noted above, the district court tried the Title VII retali-
ation claim assuming that a former employee could bring such a claim
against a former employer, both parties acknowledge that the
Supreme Court's holding in Robinson does not have any effect on our
review of this case.

Gnadt and the EEOC believe that this case does present the ques-
tion of whether a former employer's "threats" of "adverse action"
alone, where the employer does not follow through on the threats, but
the employee is otherwise affected by them, can be a basis for a retali-
ation claim. However, a close examination of the record reveals that
not even this issue is properly before us.

The district court explained its rationale for entering judgment as
a matter of law on the retaliation claim as follows:

          [W]hat the Court has to look at with retaliation is whether
          or not there is any evidence in the case that the defendant
          interfered with any prospective employment opportunities
          for the employee, and there is absolutely no evidence of that
          other than a threat by Mr. Castro to keep the plaintiff from
          ever getting a law job.

          [Gnadt], herself, admitted several times . . . that she had no
          evidence whatsoever that any phone calls, or any contacts,
          or any actions had been taken by the defendant to in any
          way interfere with prospective business, educational, or
          other kinds of activities. And therefore, I find no factual
          basis to support the plaintiff's case on the retaliation issue.

Thus, the district court did not just hold that Gnadt's retaliation claim
failed for lack of evidence that Castro acted to interfere with Gnadt's

                     5
prospective employment opportunities. Rather, the district court also
found that Gnadt had not proved any harm to or even effect on her
resulting from Castro's threat, i.e. no "interference" with Gnadt's
"prospective business, educational, or any other kinds of activities."
See Fed. R. Civ. P. 52(c) (district court's entry of judgment on partial
findings while conducting a bench trial must be supported by findings
of fact and conclusions of law as required by Federal Rule of Civil
Procedure 52(a)).

Of course, Gnadt did present her own testimony that Castro's threat
affected her social life and "scared" her because she believed he
would "sabotage" her efforts to find future employment and Mooradi-
an's testimony that her performance at work suffered, which provide
some evidence to the contrary. However, the district court by neces-
sity found that, in view of Gnadt's numerous concessions as to lack
of proof of any injury, this evidence was insufficient -- that Gnadt
had failed to demonstrate any harm to or even effect on herself from
Castro's threats. As indicated in our summary of the facts above,
clearly there was evidentiary support for this finding. See Fed. R. Civ.
P. 52(a) ("Findings of fact, whether based on oral or documentary evi-
dence, shall not be set aside unless clearly erroneous, and due regard
shall be given to the opportunity of the trial court to judge of [sic] the
credibility of the witnesses."). Indeed, on this record it would be
impossible to find that Gnadt proved any measurable harm to or even
effect on her resulting from Castro's threat.

In view of this well-supported factual finding, the only appellate
argument available to Gnadt is that an employer's threats alone,
which the employee is unable to prove had any effect at all on her,
can constitute a basis for a Title VII retaliation claim. Neither EEOC
nor Gnadt has cited any case so holding and we have found none. It
is difficult to envision such a case in view of the fact that Title VII,
as amended in 1991, permits the award of compensatory damages
only for "future pecuniary losses, emotional pain, suffering, inconve-
nience, mental anguish, loss of enjoyment of life, and other nonpecu-
niary losses," 42 U.S.C. § 1981a(b)(3), not for no loss at all. Even
violation of a constitutional right does not entitle a plaintiff to com-
pensatory damages without proof of injury. See Memphis Community
Sch. Dist. v. Stachura, 477 U.S. 299, 308 (1986) ("Where no injury
was present, no `compensatory' damages could be awarded.").

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For these reasons, the judgment of the district court is

AFFIRMED.

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