Examples of tangible employment actions include:30 " hiring and firing; " promotion and failure to promote; " demotion;31 " undesirable reassignment; " a decision causing a significant change in benefits; " compensation decisions; and " work assignment. ---------------------- The intimidation incidents were initially summarized in my filing with the Equal Employment Opportunities Commission wherein I listed: Threatening emails while employed. Threatening email after discharge. Threatening anti-Semitic terrorist photo sent in email. Refusal to permit carrying out the duties of my position. Blame for lost commercial revenue. Sabotage of work performed. Public humiliation and character assassination. Humiliation by management to staff. Attempts to trick me into violating corporate policy. Sabotage of transmitter power. Sabotage of station audio processing equipment. Sabotage of program elements. Ordered not to so much as call the area code of Lexington Kentucky (both for me and my wife.) Refusal to permit necessary work tools (which were provided immediately after I was fired.) Called a liar repeatedly. Insulted continuously behind my back. Every report I made of unsafe or illegal behavior and conditions was ignored. Receipt of a carefully edited mp3 file of "Crying Time Again" AFTER I was fired. Equipment was damaged (but only effecting WCOO). Notices of unsafe working conditions were ignored. Music scheduling software was tampered with. Attack continued after discharge. Penalized for wanting to do my job and improve the midday slot at the radio station by insisting that such a position would be part time only. Rumors and innuendos. Threatened with legal action and advised of legal action against me. Refusal to repair broken and damaged equipment only for WCOO. Replacing equipment (only for WCOO) with defective parts. Hatred of 'black' music. Branded a 'complainer'. Intimidation of a new employee before the start date of that employee. Software was deleted from production computer. Given a broken 'boom box' to suffice for an air check machine. Constant references to changing the station's format. Being told to write a memo about a microphone caused an outrage by the engineer. Show prep stolen from my desk. Equipment in my desk was damaged. Given a non-working telephone for my desk. Ethics questioned. Interruptions using the 'hot-line' during my morning show causing dead air and bad radio. Tampering with the station's legal ID. Given worst computer in the building to suffice for WCOO's music computer. Degradation of my wife for having spoken to Mr. Martin and complaining of a sexual innuendo which was never investigated. ----------------------- The courts of appeals have articulated different standards for what types of employer conduct are actionable under 42 U.S.C. 2000e-3. In Mattern v. Eastman Kodak Co., 104 F.3d 702, 707, cert. denied, 522 U.S. 932 (1997), the Fifth Circuit held that Title VII retaliation claims are intended to address only "ultimate employment decisions, not to address every decision made by employers that arguably might have some tangential effect upon those ultimate decisions." Mattern defined ultimate employment decisions as acts "such as hiring, granting leave, discharging, promoting, and compensating." Ibid. The Fifth Circuit continues to adhere to this view.2 See Thomas v. Texas Dep't of Criminal Justice, 220 F.3d 389, 394 n.2 (5th Cir. 2000) (quoting Mattern, 104 F.3d at 707). Other courts of appeals have held that "Title VII's protection against retaliatory discrimination extends to adverse actions which fall short of ultimate employment decisions." Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453 (11th Cir. 1998); see also Wyatt v. City of Boston, 35 F.3d 13, 15-16 (1st Cir. 1994); Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir. 1997); Knox v. Indiana, 93 F.3d 1327, 1334 (7th Cir. 1996); Fielder v. UAL Corp., 218 F.3d 973, 985 (9th Cir. 2000), petition for cert. pending, No. 00-1397; Gunnell v. Utah Valley State College, 152 F.3d 1253, 1264 (10th Cir. 1998). ----------------------- Contrary to petitioner's assertion, however, "'ultimate employment decision' is not the standard in [the Fourth] [C]ircuit." Von Gunten v. Maryland, No. 00-1058, 2001 WL 273104, at *4 (Mar. 20, 2001). The district court in this case did not adopt that standard or cite any case applying that standard; rather, the court made the general conclusion that "there is no evidence of any adverse employment action" and "the type of actions alleged * * * do not amount to retaliation or retaliatory harassment that can give rise to a cause of action under Title VII." Pet. App. 11-12. Indeed, use of the term "retaliatory harassment" is a recognition that harassment may be the basis for a retaliation claim. The court of appeals then issued an unpublished, per curiam opinion that affirmed "on the reasoning of the district court." Id. at 2. The Fourth Circuit's recent opinion in Von Gunten v. Maryland, supra, makes clear that "conduct short of 'ultimate employment decisions' can constitute adverse employment action for purposes of § 2000e-3." 2001 WL 273104, at * 5. Although Von Guten recognized that the circuit had "never before expressly so held," ibid., the court explained that its prior decisions had recognized that retaliation claims may be based on actions other than ultimate employment decisions. For example, in Ross v. Communications Satellite Corp., 759 F.2d 355, 366 (4th Cir. 1985), the court "recognized that * * * acts of retaliatory harassment, if proved, could constitute adverse employment action" when it remanded retaliatory harassment claims to the district court. Von Guten, 2001 WL 273104, at *5 (citing Ross, 759 F.2d at 363). Similarly, in Munday v. Waste Management of North America, Inc., 126 F.3d 239 (4th Cir. 1997), cert. denied, 522 U.S. 1116 (1998), the court of appeals recognized that retaliatory conduct affecting "the terms, conditions, or benefits" of employment could be actionable under Title VII. Id. at 243, cited in Von Guten, 2001 WL 273104, at *5. ------------------------- Fourth Circuit In Von Gunten v. Maryland, 243 F.3d 858, 866, fn. 4 (4th Cir. 2001), the Fourth Circuit clarified its view that, as in the First, Ninth, Tenth and Eleventh Circuits, conduct short of an ?ultimate employment decision? can constitute an adverse employment action. Von Gunten held, however, that an adverse employment action includes any retaliatory act or harassment, ?if, but only if?it results in an adverse effect on the terms, conditions or benefits of employment.? Smith v. First Union National Bank, 202 F.3d 234, 248, n.11 (4th Cir. 2000)(Assuming arguendo that plaintiff established a prima facie case where she alleged retaliatory conduct consisting of threats to terminate her employment for consulting with counsel, chastising her, and forcing her to work on the same floor as the harasser and not offering her other positions.) Matvia v. Bald Head Island Management, 259 F.3d 261 (4th Cir. 2001)(no adverse employment action where employer failed to correct ?incivility? of co-workers, where there was no allegation the employer instructed co-workers to ostracize plaintiff); Munday v. Waste Management of N. Am., Inc., 126 F.3d 239, 243 (4th Cir. 1997)(action did not materially affect terms and conditions of employment where employer instructed co-workers to shun plaintiff, spy on her and report her activities to management); Hopkins v. Baltimore Gas & Electric Co., 77 F.3d 745, 754-755 (4th Cir. 1996) (no retaliation for plaintiff's complaining about alleged harassment by his supervisor; the whole unit was laid off, including the supervisor, and the other alleged instances of retaliation - a disciplinary warning that was eventually removed from his personnel file, comments on his appraisals, and advice to forget about the supervisor's behavior - were not adverse employment actions.) ------------------------ In Von Gunten v. Maryland, No. 00-1058 (4th Cir. March 20, 2001), the Fourth Circuit Court of Appeals reaffirmed that under Title VII, employer liability for retaliation is not limited just to those instances when an employer counters with an ultimate employment decision, such as a firing or demotion. Rather, adverse employment actions which affect the terms and conditions of that employee's job, even if the employer's conduct falls short of an ultimate employment decision, can still expose an employer to liability for retaliation within the meaning of Title VII. --------------------- An employee may show that he was discharged by direct or cir-cumstantial evidence. See Desert Palace, Inc. v. Costa, 539 U.S. 90,99-100 (2003); United States Postal Serv. v. Service Bd. of Gov., 460U.S. 711, 714 n.3 (1983). The words "fired" or "terminated" need notbe used by an employer to constitute actual termination. See EEOCv. Service News Co., 898 F.2d 958, 962 (4th Cir. 1990 ------------------- An employee is entitled to relief absent a formal discharge, "if anemployer deliberately makes the working conditions intolerable in aneffort to induce the employee to quit." Martin v. Cavalier HotelCorp., 48 F.3d 1343, 1353-54 (4th Cir. 1995) -------------------- As we explained in Goldsmith v. Mayor and City Council of Balti-more, 987 F.2d 1064, 1072 (4th Cir. 1993): An employee may not be unreasonably sensitive to his workingenvironment. Thus, the law does not permit an employee’s sub-jective perceptions to govern a claim of constructive discharge.Every job has its frustrations, challenges and disappointments;these inhere in the nature of work. An employee is protectedfrom a calculated effort to pressure him into resignation throughthe imposition of unreasonably harsh conditions, in excess ofthose faced by his co-workers. He is not, however, guaranteed aworking environment free of stress. ------------------- "a calculated effort to pressure [Honor] into resignationthrough the imposition of unreasonably harsh conditions, in excess ofthose faced by his co-workers." James v. Booz Allen & Hamilton,Inc., 368 F.3d 371 (4th Cir. 2004) (quoting Bristow v. Daily Press,Inc., 770 F.2d 1251, 1255 (4th Cir. 1985)). -------------------- ("[A]n individual plaintiff in a private, non-class action allegingemployment discrimination is not litigating common questions offact, but the discrete question of whether the employer discriminatedagainst the plaintiff in a specific instance."), vacated on othergrounds, 527 U.S. 1031 (1999); Childress v. City of Richmond, 907F. Supp. 934, 940 (E.D.Va. 1995), aff’d in part, 134 F.3d 1205 (4thCir. 1998) (en banc), cert. denied, 524 U.S. 927 (1998); see also Sch-rand v. Federal Pac. Elec. Co., 851 F.2d 152, 156 (6th Cir. 1988)(citing Haskell v. Kaman Corp., 743 F.2d 113, 121-22 (2d Cir. 1984)(holding that testimony by other employees regarding their termina-tions was irrelevant and prejudicial --------------------- Courts look at all circumstances to ascertain whether an environment is sufficiently hostile or abusive to support a claim. See Harris, 510 U.S. at 23; Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000) ("Determining whether workplace harassment was severe or pervasive enough to be actionable depends on the totality of the circumstances."). The factors that courts may consider include: the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance. The effect on the employee's psychological well-being is, of course, relevant to determining whether the plaintiff actually found the environment abusive. But while psychological harm, like any other relevant factor, may be taken into account, no single factor is required. ----------------------------- In so holding, we recognize that evidence of harassment directed at other co-workers can be relevant to an employee's own claim of hostile work environment discrimination. "Because the crucial inquiry focuses on the nature of the workplace environment as a whole, a plaintiff who herself experiences discriminatory harassment need not be the target of other instances of hostility in order for those incidents to support her claim." Cruz, 202 F.3d at 570 (emphasis added); accord Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 70 n.9 (2d Cir. 2000) (citing Cruz for proposition that environment as a whole is relevant to individual plaintiff's hostile work environment claim); Perry v. Ethan Allen, Inc., 115 F.3d 143, 151 (2d Cir. 1997) (concluding evidence of harassment directed at women other than plaintiff is relevant to hostile environment analysis); cf. McPhaul v. Board of Comm'rs, 226 F.3d 558, 567 (7th Cir. 2000) (harassing conduct directed at someone other than plaintiff, while relevant, does not have the same impact); Gleason v. Mesirow Fin., Inc., 118 F.3d 1134, 1144 (7th Cir. 1997) (same); Schwapp v. Town of Avon, 118 F.3d 106, 112 (2d Cir. 1997) (noting incidents directed at others or outside plaintiff's presence "may be of limited probative value" at trial). ------------------------------ Furthermore, remarks made outside a plaintiff's presence can be relevant to a hostile work environment claim. See Schwapp, 118 F.3d at 111 (holding comments made outside plaintiff's presence and learned second-hand may also contribute to a hostile work environment); Torres v. Pisano, 116 F.3d 625, 633 (2d Cir. 1997) ("The fact that many of [the defendant's] statements were not made in [plaintiff's] presence is, in this case, of no matter; an employee who knows that her boss is saying things of this sort behind her back may reasonably find her working environment hostile.").8 --------------------------- Hartsell v. Duplex Products, Inc. , 123 F.3d 766, 775 (4th Cir. 1997) (recognizing that discharge is an adverse employment action). ------------------- To satisfy the third element, the employer must have taken the adverse employment action because the plaintiff engaged in a pro- tected activity. Since, by definition, an employer cannot take action because of a factor of which it is unaware, the employer's knowledge that the plaintiff engaged in a protected activity is absolutely neces- sary to establish the third element of the prima facie case. See, e.g. , Grizzle v. Travelers Health Network, Inc. , 14 F.3d 261, 267 (5th Cir. 1994) (dismissing claim because no evidence that relevant decision- maker knew that plaintiff had complained of discrimination); Hudson v. Southern Ductile Casting Corp. , 849 F.2d 1372, 1376 (11th Cir. 1988) (dismissing claim because relevant decisionmaker was unaware that plaintiff had filed a complaint with the EEOC); Talley v. United States Postal Serv. , 720 F.2d 505, 508 (8th Cir. 1983) (dismissing claim because no evidence that supervisor who made adverse person- nel decision was aware that plaintiff had engaged in a protected activ- ity). ------------------------ unlawful for an employer to take adverse employment action against employees who have "made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hear- ing" under Title VII. 42 U.S.C. § 2000e-3(a); see Hochstadt v. Worcester Foundation for Experimental Biology , 545 F.2d 222, 230 (1st Cir. 1976). ----------------------- the EEOC contends that the sec- ond prong of the test set forth above is too restrictive. The EEOC main- tains that, unlike 42 U.S.C. § 2000e-2 (1994), which prohibits discriminatory employment actions, § 2000e-3 prohibits, not just "ad- verse employment actions," but also "any retaliatory conduct by an employer that is reasonably likely to deter protected activity." EEOC Brief at 13 and 15 n.1. But this court long ago determined, in a case that we (and others) have cited repeatedly, that § 2000e-3 retaliation claims, like § 2000e-2 discrimination claims, require proof of an "adverse employment action." See Ross v. Communications Satellite Corp., 759 F.2d 355, 365 (4th Cir. 1985). We explained in Ross that "Congress has not expressed a stronger preference for preventing retaliation under § 2000e-3 than for preventing actual discrimination under § 2000e-2" and "[i]n the absence of strong contrary policy considerations, confor- mity between the provisions of Title VII is to be preferred." Id. at 366. ---------------