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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND CHARLES HOLLOWAY, Plaintiff, v. JOHN E. POTTER, Postmaster General, United States Postal Service, Defendant. * * * * * * * * * * * * *****

Civil No. JFM-05-3087

MEMORANDUM Plaintiff Charles Holloway ("Holloway") brought this suit against John Potter, the Postmaster General of the United States Postal Service ("the Postal Service"), alleging both sexual harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964. The Postal Service has filed a motion to dismiss, or in the alternative for summary judgment. For the reasons stated below, the motion will be granted. I. Plaintiff Holloway was (and apparently still is) employed by the Postal Service as a laborer custodian. During the relevant period of time, Glenn March ("March") served as acting maintenance supervisor, placing him in a position of authority over Holloway. Two other Postal Service employees, Ron Bailey ("Bailey") and Michael Luciano ("Luciano"), served as Holloway's managers. In March, 2002, March held a pre-disciplinary interview ("PDI") with Holloway. The events leading up to the PDI are in dispute and are not material to the pending motion.

Holloway alleges that during the PDI, March "subjected [Holloway] to actions of a sexual nature, including but not limited to, asking him if he thought he was `cute, attractive or sexy' as he winked at him, and making other gestures of a feminine nature". Holloway informed Bailey and Luciano of the incident, and they told him they would look into it. The Postal Service alleges that Bailey and Luciano concluded the comments were "unprofessional", counseled March, and sent him to training "to improve his management skills", but the Postal Service did not file any report on the incident. Holloway contacted an EEO counselor on April 2, 2002 regarding the incident and made an appointment with a dispute resolution specialist. A second incident occurred that afternoon, allegedly in retaliation for Holloway's contacting the EEO counselor. Holloway alleges that he approached March and explained that he did not appreciate March's comments, and asked him to stop making them. March agreed to do so, but then allegedly had Holloway escorted from the premises by the Postal Police and placed on "Emergency Placement". Holloway alleges that the basis for this removal was falsified by March, and that March additionally asked a co-worker to lie and say that Holloway had threatened March. March, in turn, alleges that he overheard Holloway threatening him. Holloway returned to work the following day with no loss of pay or benefits as a result of his removal. Holloway alleges that several weeks later March attempted to knock him down in the hallway, also in retaliation. II. Because the Postal Service's motion requires this Court to look beyond the four corners of the Complaint, it will be treated as one for summary judgment. Summary judgment is proper where there is no genuine issue of material fact and the moving party proves that it is entitled to

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judgment as a matter of law. See Fed. R. Civ. P. 56. Materiality is determined by the substantive law of the case; if a fact is in dispute that might affect the outcome of a case, it is considered to be material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When assessing a motion for summary judgment, the court must draw all justifiable inferences in favor of the non-moving party. Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986). In the context of Title VII claims, an employer is entitled to summary judgment if it can show that the employee fails to satisfy one or more of the elements of the claims as a matter of law. Bernard v. Calhoon Meba Engineering Sch., 309 F. Supp. 2d 732, 738 (D. Md. 2004). III. Title VII of the Civil Rights Act of 1964 has been held to provide a cause of action where "the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment". Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 78 (1998). The framework for this type of claim under Title VII is well-established. See Matvia v. Bald Head Island, 259 F.3d 261 (4th Cir. 2001). In order to establish a prima facie hostile environment case in the sexual harassment context, the employee must show that 1) the conduct occurred because of his or her sex, 2) the conduct was unwelcome, 3) the conduct was sufficiently severe or pervasive to create an abusive environment, and 4) that there exists a basis for imputing liability to the employer. Id. at 266. In this case, summary judgment will be granted because Holloway has failed to allege that the conduct complained of was sufficiently

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severe or pervasive to create an abusive environment.1 As the Supreme Court explained in Oncale, conduct that does not "create an objectively hostile or abusive work environment

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