UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

KERTIA WALTON MYER,
Plaintiff-Appellant,

v.

THOMAS C. YOUNCE, in his position
as Assistant Chief of Police for the
East Carolina University Police
Department; THERESA CROCKER,
Chief of Police, in her official
capacity as the Chief of Police for
East Carolina University; EAST
CAROLINA UNIVERSITY, a duly formed
University existing under the laws
for the State of North Carolina,
Defendants-Appellees,
                                                          No. 99-1302
and

JOHN TAYLOR, individually and in
his position as Assistant Chief of
Police for the East Carolina
University Police Department;
MARY ANN ROSE, Doctor, Assistant
to the Chancellor at East Carolina
University for Special Assignments
and Equal Employment Opportunity
Officer, individually and in her
capacity as Equal Employment
Opportunity Officer for East
Carolina University,
Defendants.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
W. Earl Britt, Senior District Judge.
(CA-97-367-5-BR)
Argued: November 30, 1999

Decided: January 24, 2000

Before WILKINS and NIEMEYER, Circuit Judges, and
Margaret B. SEYMOUR, United States District Judge for the
District of South Carolina, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: David Peter Voerman, New Bern, North Carolina, for
Appellant. Celia Grasty Lata, Assistant Attorney General, NORTH
CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Caro-
lina, for Appellees. ON BRIEF: Michael F. Easley, Attorney General
of North Carolina, Sylvia H. Thibaut, Assistant Attorney General,
NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North
Carolina, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Kertia Walton Myer1 appeals a district court order granting sum-
mary judgment against her on her claims of sexual harassment, con-
_________________________________________________________________
1 Kertia Walton took the name Myer when she married in December
1995. For ease of reference, we will refer to her as Myer throughout the
opinion.

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structive discharge, and retaliation.2 See 42 U.S.C.A. §§ 2000e-
2(a)(1), 2000e-3(a) (West 1994). Concluding that the district court
correctly decided the issues before it, we affirm.

I.

The facts, viewed in the light most favorable to Myer, are as fol-
lows. In the spring of 1995, Myer was a student at East Carolina Uni-
versity (ECU) and was employed as a part-time dispatcher for the
ECU Police Department (the Department). Myer worked only when
the full-time dispatchers were on leave. From the time that Myer
began employment with the Department in 1993 until April 1995, she
generally worked two eight-hour shifts per week, and occasionally a
twelve-hour day. These hours were reduced in April 1995, however,
after a new full-time dispatcher began employment with the Depart-
ment. When her hours were reduced, Myer, who was also involved
in a work-study program with the Department, was informed that she
could continue to work the same hours she had been working by
increasing her work-study hours. Myer chose not to do so, however.

In late March 1995, Myer, in the course of her Department duties,
brought some papers to the office of Assistant Chief of Police John
Taylor. While Myer was in his office, Taylor kissed Myer and fon-
dled her breasts and buttocks. Myer rebuffed Taylor's advances and
left.

Approximately one week later, Myer was called to Taylor's office.
When she arrived, she blacked out and remembers only finding her-
_________________________________________________________________
2 The defendants included Theresa Crocker, individually and in her
official capacity as Chief of Police for East Carolina University; John
Taylor, individually and in his official capacity as Assistant Chief of
Police for the East Carolina University Police Department; Mary Ann
Rose, individually and in her official capacity as Director of Equal
Opportunity Programs for East Carolina University; and East Carolina
University. Subsequently, the claims against the individual defendants in
their individual capacities and against Rose in her official capacity were
dismissed and Thomas C. Younce, who had replaced Taylor as Assistant
Chief of Police for the East Carolina University Police Department, was
substituted for Taylor as a defendant.

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self bent over a chair with her dress up and Taylor engaging in sexual
intercourse with her. When she told Taylor that she was not using
birth control, he withdrew. Myer then went to the bathroom to wash
her face and told Taylor she had to leave. Taylor subsequently drove
her home.

Allegations of sexual activity between Taylor and Myer first sur-
faced on June 22, 1995, when Myer's boyfriend, a Department patrol-
man, told ECU Police Lieutenant Stan Kittrell that Myer had
informed him that she and Taylor had engaged in sexual intercourse.
Kittrell informed Taylor of the allegation and the two had a meeting
with Department Chief of Police Theresa Crocker. Taylor denied
engaging in any sexual activity with Myer. Nevertheless, Crocker
immediately contacted Mary Ann Rose, ECU's Director of Equal
Opportunity Programs, and requested that she talk with Myer.

Myer told Rose of the above-described sexual activity with Taylor.
Rose then interviewed Taylor, who again denied that the incidents
ever occurred. At that time, Rose instructed Taylor not to contact
Myer and requested that he use accumulated compensatory time to
remain out of the workplace until further notice. Taylor complied
with her request. Because Myer's and Taylor's stories were in con-
flict, Rose undertook an investigation in which she interviewed sev-
eral witnesses, including Myer, multiple times. Taylor eventually
resigned July 5, 1995, and Myer subsequently returned to work, con-
tinuing with the Department until she resigned in August 1996, some
three months after her graduation from ECU.

Taylor had received training in equal employment opportunity law,
including sexual harassment, when he was hired as Assistant Chief of
Police of the Department. Additionally, at all times relevant to this
case ECU had a statement of policy prohibiting sexual harassment
which was posted at 75 locations on the ECU campus, including the
Department. The posted policy stated that "making unwelcomed sex-
ual advances" was against ECU policy. J.A. 502. It further instructed
that any sexual harassment complaint should be reported to Rose and
provided the location of her office and her phone number. Despite the
existence of this policy, Myer did not report either incident with Tay-
lor to Rose prior to the time Crocker contacted Myer.

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Myer filed this suit on May 8, 1997, alleging, inter alia, claims of
sexual harassment, sex discrimination constituting constructive dis-
charge, and retaliation. On May 15, 1998, ECU, Crocker, and Assis-
tant Chief of Police Thomas C. Younce (collectively,"Defendants"),
moved for summary judgment. They subsequently moved without
opposition for leave to amend their answer to add the affirmative
defense to vicarious liability announced by the United States Supreme
Court in Burlington Industries, Inc. v. Ellerth , 118 S. Ct. 2257 (1998),
and Faragher v. City of Boca Raton, 118 S. Ct. 2275 (1998). In
response to Defendants' summary judgment motion, Myer submitted
affidavits stating, in pertinent part, that Rose had questioned Myer in
a manner indicating that ECU had no interest in resolving the allega-
tions against Taylor and that Myer had been treated as an outcast by
her coworkers at the Department after making her allegations. Myer
also contended that her hours of work had been reduced after the inci-
dents.

Having received legal memoranda from all parties, the district
court granted Defendants' motion to amend as well as their motion
for summary judgment. The court concluded that Defendants had
established an affirmative defense against vicarious liability for Tay-
lor's alleged sexual harassment because ECU exercised reasonable
care to prevent and promptly correct any sexually harassing behavior,
and Myer unreasonably failed to take advantage of the preventative
or corrective opportunities that ECU provided to avoid harm from the
harassment. The court determined that Myer's constructive discharge
claim failed because Rose's actions were part of a legitimate investi-
gation rather than a deliberate attempt to force Myer to resign, Myer's
supervisors played no part in the cold treatment Myer allegedly
received from her coworkers after her complaint, and in any case nei-
ther of these events caused Myer's resignation. Finally, the court con-
cluded that Myer's retaliation claim failed because she had not
suffered any adverse employment action as a result of her allegations
against Taylor since her decrease in hours was due to the fact that the
Department had employed a new full-time dispatcher.

II.

Having had the benefit of oral argument and the parties' briefs, and
after careful consideration of the record and the applicable law, we

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conclude that the district court correctly decided the issues before it.
Accordingly, we affirm on the reasoning of the district court. See
Walton v. Younce, No. 5:97-CV-367-BR2 (E.D.N.C. Jan. 27, 1999).

AFFIRMED

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