UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SHEILA COHEN,
Plaintiff-Appellant,

v.
                                                               No. 98-1565
ABBOTT LABORATORIES, an Illinois
Corporation doing business in North
Carolina,
Defendant-Appellee.

SHEILA COHEN,
Plaintiff-Appellee,

v.
                                                               No. 98-1628
ABBOTT LABORATORIES, an Illinois
Corporation doing business in North
Carolina,
Defendant-Appellant.

Appeals from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
W. Earl Britt, Senior District Judge.
(CA-96-943)

Argued: March 4, 1999

Decided: April 27, 1999

Before WIDENER, LUTTIG, and MICHAEL, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________
COUNSEL

ARGUED: Richard Woodson Rutherford, JOYCE L. DAVIS &
ASSOCIATES, Raleigh, North Carolina, for Appellant. Kerry Anne
Shad, SMITH, ANDERSON, BLOUNT, DORSETT, MITCHELL &
JERNIGAN, L.L.P., Raleigh, North Carolina, for Appellee. ON
BRIEF: Zoe G. Mahood, JOYCE L. DAVIS & ASSOCIATES,
Raleigh, North Carolina, for Appellant. Mark A. Ash, SMITH,
ANDERSON, BLOUNT, DORSETT, MITCHELL & JERNIGAN,
L.L.P., Raleigh, North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Appellee Abbott Laboratories fired appellant Sheila Cohen in June
1995, after a series of incidents for which Cohen was disciplined.
Cohen sued Abbott, under both state and federal law, alleging sex dis-
crimination and retaliation for reporting sexual harassment. The dis-
trict court dismissed one claim on the pleadings and the remaining
claims on summary judgment. Finding no genuine issue of material
fact on any claim, we affirm.

I.

Prior to her discharge, Cohen had worked at Abbott since 1981 in
its saline solution bottling operation in Rocky Mount, North Carolina.
The events that give rise to this dispute chiefly occurred from Febru-
ary to June, 1995.

In February 1995, Cohen had a rift with co-worker Robbie Griffin,
after she reported to her supervisor that Griffin had failed to respond
to an ozone alarm. Angry at Cohen for getting him in trouble, Griffin

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thereafter, according to Cohen, repeatedly caused her problems in the
performance of her work. In the evening of March 24, 1995, Cohen
reported the then-latest incident to Steve Freeman, her production
manager. (Freeman had been promoted to this position in 1988 when
Abbott asked his predecessor, Bobby Moody, to resign after reports
that Moody had sexually harassed Cohen and others. Freeman is mar-
ried to the sister of Moody's wife.) Cohen and Freeman agreed that,
from that time forward, in order to avoid friction, Cohen would report
any mechanical problems to Brenda Phillips, the manufacturing
supervisor, rather than to Griffin. Both Freeman and Phillips testified
that, at the meeting with Cohen the evening in which they established
this new procedure, they also made clear that Cohen was not to talk
to anyone about her problems with Griffin. Cohen disputed their char-
acterization of this conversation, but admitted that Freeman told her,
"`[w]ell, then, there is no need to discuss this with anybody why
instrumentation problems are being handled through Brenda [rather]
than through you.'"

Notwithstanding this warning, Cohen discussed the tension with
Griffin with several of her co-workers in the Abbott cafeteria the very
next morning (March 25). Her criticism of Griffin provoked several
of his co-workers to defend him, which led to further ill-tempered
remarks by Cohen against men in general and the men at Abbott in
particular. Two of those present immediately complained to their
supervisor, who had also been present, and the supervisor informed
Freeman of Cohen's outburst.

As a consequence of this outburst, later in the early morning of
March 25 Cohen received a second instruction to be silent about Grif-
fin, this one unambiguous. Brenda Phillips approached Cohen, told
her of the complaints about her outburst, and, in Cohen's words, "told
me . . . not to be talking about Robbie anymore."

Again, however, Cohen immediately discussed the matter later that
same morning with a co-worker. Phillips observed this conversation,
reported it to Freeman, and recommended a written reprimand. Phil-
lips reported her recommendation to Jack Layman, of Human
Resources, and he instead decided on a written warning, a more
severe discipline.

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Layman's decision resulted in a written warning to Cohen for "Def-
amation of Character," which included yet a third order not to further
discuss the problems she was having with Griffin. Phillips drafted this
warning, and she and Freeman presented it to Cohen in late May, after
Cohen returned from a seven-week absence due to an ankle injury.
The warning referred to the events discussed above, including the
meeting on the evening of March 24 at which Cohen, according to the
warning, "agreed on the plan of action . . . eliminating the need for
any further discussion of the [Griffin] matter with other employees."
It also cited Cohen's "past history of conflict and disruptive behavior"
as justification for the warning. It ordered her not to "hold discussions
slandering" anyone or to "disrupt the work place," and "not to con-
front other employees regarding issues discussed in this warning."
Said the warning, "[y]ou are to bring your concerns to your supervi-
sor." Finally, the written warning informed Cohen that future viola-
tions would result "in further disciplinary action up to and including
termination." Cohen admits to having read and understood this writ-
ten warning.

Disregarding her instructions, Cohen immediately discussed the
written warning with two fellow employees and lamented to Abbott's
occupational health nurse that Freeman disliked her. After learning of
this latest violation, Freeman recommended another written warning.
Layman, however, overruled Freeman and, given Cohen's pattern of
conduct, decided on termination. Cohen was fired in June. Phillips
informed Cohen of Layman's decision.

In November 1995, Cohen filed charges of "Retaliation for sex
harassment complaint" and of "sex discrimination" with the Equal
Employment Opportunity Commission ("EEOC"). Cohen initially
cooperated extensively with the EEOC, meeting with an official in
February 1996, twice providing documentation, and responding to the
EEOC's effort to amend her complaint, which the EEOC considered
incomplete. Cohen's patience ran out, however, when the EEOC sent
her a second round of proposed changes, and she refused to cooperate
further. The EEOC thereafter dismissed Cohen's charges "for failure
to cooperate," and issued her a notice of right-to-sue. The letter
apprising her of the dismissal, in July 1996, informed Cohen that
"[y]ou . . . can proceed in Federal court on your own."

                    4
Cohen did proceed on her own, bringing suit in federal court in
November 1996. The complaint appears to state four separate claims:
(1) retaliation under Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e-3(a); (2) sex discrimination under Title VII, 42 U.S.C.
§ 2000e-2(a); (3) retaliatory discharge in violation of North Carolina
public policy; and (4) discharge on account of sex, in violation of
North Carolina public policy. Although Freeman did not make the
ultimate decision to fire Cohen, the complaint names only Freeman
as having had any desire to retaliate against her. 1 (Cohen now argues,
however, that Layman assisted Freeman's efforts.) Cohen alleges that
Freeman's motive was revenge for Cohen's participation in the inves-
tigation of Moody seven years before.

After extensive discovery, the district court entered judgment for
Abbott on all of Cohen's claims. The court granted summary judg-
ment on Cohen's two federal claims because, by failing to cooperate
fully with the EEOC, she had failed to exhaust her administrative
remedies. It granted judgment on the pleadings regarding her state
law claim of retaliatory discharge because, in its view, there was in
North Carolina "no stated . . . public policy against retaliatory dis-
charge arising from complaints of sexual harassment," and thus no
implied cause of action such as Cohen's. Finally, the district court
appears to have entered summary judgment on Cohen's state law
claim of sex discrimination; although it gave no reasons for so doing,
the parties agree that the court dismissed this claim, and the court did
enter an order of final judgment. Cohen now appeals on all of her
claims.

II.

We first address Cohen's Title VII claims, and we conclude that
they cannot survive summary judgment on the merits. As will be
explained, her state claims likewise fail, for the same reasons as the
Title VII claims.
_________________________________________________________________
1 Notwithstanding the suggestion in her complaint, she no longer
argues that Abbott should be liable for Moody's harassment of her in
1988, but rather that Abbott's disciplining of Moody led to Freeman's
(and ultimately Abbott's) actions against her in 1995. See Appellant's Br.
at 14.

                     5
The district court held, and appellee Abbott argues on appeal, that
Cohen may not sue under Title VII because, by ceasing her coopera-
tion with the EEOC, she failed to exhaust administrative remedies as
Title VII requires. See generally 42 U.S.C.§ 2000e-5(b); Davis v.
North Carolina Dep't of Correction, 48 F.3d 134, 137-38 (4th Cir.
1995). Cohen responds that she did all that was required: she filed
charges with the EEOC, then received a notice of right-to-sue. See
Alexander v. Gardner-Denver Co., 415 U.S. 36, 47 (1974); Davis, 48
F.3d at 138. More importantly, Cohen argues that she did cooperate
in good faith with the EEOC as much as could reasonably be
required, ceasing to do so only when such became futile. She should
not, she argues, suffer for the EEOC's obstinacy and delay. We see
no reason to resolve this dispute, however. Since the parties have
fully briefed the underlying merits, and since Cohen's Title VII
claims plainly warrant summary judgment on their merits, we affirm
on that ground, under our well established authority to "affirm on any
legal ground supported by the record." Jackson v. Kimel, 992 F.2d
1318, 1322 (4th Cir. 1993).

Cohen's Title VII claim of retaliation fails because, by the over-
whelming evidence, including her own admissions, she has not rebut-
ted Abbott's legitimate, nonretaliatory, reason for disciplining and
then firing her. To survive summary judgment on a claim of retalia-
tion, a plaintiff must first establish a prima facie case by proffering
evidence that could convince a reasonable jury (1) that plaintiff
engaged in a protected activity, (2) that the employer took an adverse
employment action against plaintiff, and (3) that there is a causal con-
nection between (1) and (2). Beall v. Abbott Lab., 130 F.3d 614, 619
(4th Cir. 1997). If the plaintiff does so, a presumption of retaliation
arises, and the burden of production shifts to the employer to rebut the
presumption by articulating a legitimate, nonretaliatory, reason for its
adverse action. Id. If the employer meets this burden, the prima facie
presumption drops out, St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502,
510 (1993), and the burden returns to the plaintiff to offer evidence
of pretext sufficient to create a genuine issue of material fact -- that
is, evidence that the employer's reason is false and that retaliation was
the real reason for its adverse action. Beall , 130 F.3d at 619. The bur-
den of persuasion remains always on the plaintiff. Id.

                    6
Even assuming that Cohen has established a prima facie case, she
has failed to rebut Abbott's evidence that it first warned and then fired
her for the plainly legitimate, nonretaliatory, reason of her continued
insubordination in 1995, particularly when one considers this reason
in light of Cohen's pattern of disruptive behavior. 2 See Armstrong v.
Index Journal Co., 647 F.2d 441, 448 (4th Cir. 1981) ("[Title VII's
bar on retaliation] was not intended to immunize insubordinate, dis-
ruptive, or nonproductive behavior at work. . . . An employer must
retain the power to discipline and discharge disobedient employees.").

An abundance of evidence supports Abbott's stated reason for fir-
ing Cohen. Three times Cohen violated instructions not to discuss
with co-workers her conflicts with Griffin, and every time her viola-
tion almost immediately followed her receipt of the instruction. Even
if a reasonable factfinder could accept Cohen's characterization of the
first such instruction (on March 24), notwithstanding Phillips' testi-
mony, Freeman's affidavit, Cohen's own quotation of Freeman's
words, and the language of the contemporaneous written warning
recounting the March 24 meeting, Cohen still violated two explicit
instructions that she not discuss the problems she was having with
Griffin. Those instructions, it bears recalling, came about not from
unilateral action by Abbott's management but rather in response to
the effort of Freeman and Phillips to respond to Cohen's complaints
against Griffin. In addition, the final instruction, in the form of the
written warning, explicitly informed Cohen of the risk of discharge
for further disobedience. Thus, Cohen's fate was in her own hands
when she knowingly continued to disobey her employer's orders.

Cohen's actions in 1995 were consistent with a long pattern of dis-
ruptive behavior, as shown by her annual performance review in
_________________________________________________________________
2 There was no "adverse action" prior to 1995. Cohen admitted in her
deposition that she suffered no loss of pay, status, or "any other kind of
benefit" prior to May 1995 and instead was promoted and given raises,
and received favorable performance reviews. In addition, the various
slights that Cohen alleges she suffered from Freeman over a seven-year
period, such as yelling and urging of other employees to spy on her, do
not constitute adverse action. See Munday v. Waste Management of
North Am., Inc., 126 F.3d 239, 243 (4th Cir. 1997), cert. denied, 118
S. Ct. 1053 (1998).

                     7
1993, a warning for "disruptive conduct" in 1991 from her supervisors
(not from Freeman), and copious notes from counselors (both female)
in Abbott's Employee Assistance Program, which Cohen frequented
from 1989 to 1993, repeatedly mentioning her "paranoia" about man-
agement (including, but hardly limited to, Freeman) and her conflicts
with numerous co-workers, both male and female, over the slightest
matters. This is the pattern to which the written warning referred and
which Layman considered in making his decision to terminate Cohen
rather than issue a second written warning.

Cohen does not dispute the series of events in 1995 or her pattern
of disputes with co-workers; rather, she freely admits to almost all of
it. And she has offered no evidence to convince a reasonable jury that
Abbott's stated, and obvious, reason for terminating her is a pretext.
She repeatedly, and almost exclusively, invokes Freeman's alleged
animus from the Moody incident seven years before. Indeed, in her
deposition, she stated her belief that, but for that incident, she would
not have been fired in 1995. Such a complaint from seven years prior
to the adverse action cannot even support a prima facie case of causa-
tion, see Causey v. Balog, 162 F.3d 795, 830 (4th Cir. 1998), much
less rebut overwhelming evidence of a nonretaliatory reason for the
adverse action. Neither does the mere knowledge of Freeman and oth-
ers that Cohen had complained about sexual harassment in 1988, and
thereafter, suffice to overcome such evidence, even if the adverse
action had occurred in 1988. See Williams v. Cerberonics, Inc., 871
F.2d 452, 457 (4th Cir. 1989).

Further, Cohen's argument for pretext based on Freeman's alleged
animosity toward her overlooks several key facts. Not only did Free-
man recommend against her termination in June 1995 (instead sug-
gesting another written warning), but he also benefitted from
Moody's dismissal in 1988, by receiving a promotion (making it
doubtful that he had much, if any, motive to retaliate against her), and
he assisted her in toning down the language in her 1993 performance
review (written by her supervisor) criticizing her for disruptive behav-
ior. More importantly, Cohen admits that she received a promotion a
month after complaining about Moody and was never demoted; that
her pay was never reduced but rather was increased over 50% from
1988 to 1995; and that on every annual performance review during
that time, which Freeman had to approve, she was rated "very good,"

                    8
the second highest rating. When asked at her deposition whether Free-
man ever caused her to lose pay, status, or "any other kind of benefit"
prior to 1995, she answered, "[n]o."

Finally, it is to be recalled that Freeman did not act alone in 1995,
but rather in coordination with both Layman and Brenda Phillips (nei-
ther of whom had any reason to care about the Moody incident from
seven years before), and that Layman, not Freeman, made the final
decisions both to issue a written warning and to fire Cohen. Although
Cohen points to "close coordination between Layman and Freeman
during the immediate pre-discharge period," it is hardly surprising,
and in fact to be expected, that Cohen's manager would be communi-
cating with the Manager of Employee Services in an effort to resolve
a personnel problem. Nor can Cohen's mere assertion that Abbott
retaliated for her generalized complaints in 1995 about the difficulties
women faced at Abbott create a genuine issue of material fact, given
the overwhelming evidence of Cohen's repeated insubordination in
1995 and pattern of disruptive behavior, and the weakness of her
argument that Freeman (the most likely suspect for any desire to retal-
iate) was out to get her. Accordingly, Cohen's Title VII claim of retal-
iation must fail as a matter of law.

Cohen's Title VII claim of sex discrimination fails for similar rea-
sons. She alleges that, because of her sex, the discipline she received
-- the written warning and discharge -- was more severe than normal.3
To establish a prima facie case of discriminatory discipline, a "plain-
tiff must show: (1) that he is a member of the class protected by Title
VII; (2) that the prohibited conduct in which he engaged was compa-
rable in seriousness to misconduct of employees outside the protected
class, and (3) that the disciplinary measures enforced against him
were more severe than those enforced against those other employees."
_________________________________________________________________
3 Cohen's complaint does not specifically allege that Freeman, between
1989 and 1995, created a hostile environment amounting to sexual
harassment, but to the extent that one could so read it, we hold that the
intermittent actions and comments that she alleges occurred over a seven
year period did not, even if true, create a hostile environment because of
her sex (or, for that matter, because of her reporting of harassment in
1988). See Hopkins v. Baltimore Gas & Elec. Co., 77 F.3d 745, 753 (4th
Cir. 1996).

                    9
Cook v. CSX Transp. Corp., 988 F.2d 507, 511 (4th Cir. 1993). If the
plaintiff makes this showing, the burden of production then, as in a
retaliation case, shifts to the employer to articulate a non-
discriminatory reason for its different treatment of plaintiff. If the
employer succeeds in doing so, the burden then shifts back to the
employee to show pretext. Id.

Plaintiff has utterly failed to satisfy these requirements. She cannot
establish a prima facie case, because she has not presented any evi-
dence of a similarly situated male whose misconduct was comparable
to hers, yet who received less severe discipline. Indeed, she did not
even allege as much in her complaint, and admitted her lack of evi-
dence in this regard in both her deposition and her response to inter-
rogatories. Even if Cohen could establish a prima facie case, she has
failed, for the reasons discussed above regarding retaliation, to show
that Abbott's articulated reason for its actions was a pretext. Thus, for
her claim of sex discrimination under Title VII, like her claim of
retaliation, she has failed to present evidence sufficient to withstand
summary judgment.

The same is true for Cohen's two claims under North Carolina law,
which essentially parallel her Title VII claims. The parties disagree
over whether North Carolina has an implied cause of action for dis-
charge in retaliation for reporting sexual harassment; the district court
held that it does not. We view this as an open question, and do not
believe it necessary to resolve that question today. Instead, we may
assume that such a cause of action exists, because Cohen still cannot
prevail on her two state law claims. North Carolina, in addressing
claims of discrimination, "has adopted the evidentiary standards and
principles developed under Title VII." Brewer v. Cabarrus Plastics,
Inc., 504 S.E.2d 580, 584 (N.C. App. 1998). 4 For the reasons dis-
_________________________________________________________________
4 We realize that in Brewer , which was decided after the district court's
decision in this case, the court vacated a trial court's directed verdict for
the employer in a suit that included a claim that the employer violated
North Carolina public policy by dismissing plaintiff in retaliation for
reporting racial discrimination. This ruling perhaps suggests that such a
claim (and, by analogy, Cohen's retaliation claim) exists in North Caro-
lina. The appeal in Brewer, however, turned entirely on the sufficiency
of plaintiff's evidence; the court never discussed whether such a claim
exists in North Carolina; and there is no evidence that the employer ever
raised the issue. Under these circumstances, we decline to assume that
the state has endorsed the new cause of action for which Cohen argues.

                     10
cussed above, we find no genuine issue of material fact in either of
Cohen's state law claims and thus affirm the summary judgment on
her sex discrimination claim and grant summary judgment to Abbott
on her retaliation claim.

III.

The judgment of the district court is affirmed. 5

AFFIRMED
_________________________________________________________________
5 Abbott's conditional cross-appeal is, accordingly, moot.

                    11
