UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 06-1960



SERENA C. MOSER,

                                                 Plaintiff - Appellant,

           versus


MCC OUTDOOR, L.L.C.;       SHIVERS    TRADING    &
OPERATING COMPANY,

                                                Defendants - Appellees.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Senior
District Judge. (1:05-cv-00288-WLO)


Argued:   September 25, 2007                 Decided:   December 5, 2007


Before TRAXLER, Circuit Judge, HAMILTON, Senior Circuit Judge, and
Robert J. CONRAD, Jr., Chief United States District Judge for the
Western District of North Carolina, sitting by designation.


Affirmed in part, reversed in part, and remanded by unpublished per
curiam opinion.


ARGUED: Stephen Ashley Boyce, Winston-Salem, North Carolina, for
Appellant.   Mason Gardner Alexander, Jr., FISHER & PHILLIPS,
L.L.P., Charlotte, North Carolina, for Appellees.      ON BRIEF:
Shannon Sumerell Spainhour, FISHER & PHILLIPS, L.L.P., Charlotte,
North Carolina, for Appellees.


Unpublished opinions are not binding precedent in this circuit
PER CURIAM:

      Serena Moser appeals a district court order granting summary

judgment against her in her action against MCC Outdoor, L.L.C. and

Shivers Trading & Operating Company, alleging claims of hostile

work environment and quid pro quo sexual harassment, termination in

retaliation        for   her   opposition      to    Title      VII   violations,      and

wrongful termination in violation of North Carolina public policy.

We   affirm    in    part,     reverse   in    part,      and    remand      for    further

proceedings.



                                          I.

      Because this is an appeal from the grant of summary judgment,

we view the facts in the light most favorable to Moser, the non-

movant.    See Saucier v. Katz, 

, 201 (2001).

                                    A. General

      Fairway Outdoor Advertising of the Triad in Greensboro, North

Carolina, is a division of MCC Outdoor, L.L.C. and Shivers Trading

and Operating Company (collectively, “Fairway”).                           Fairway hired

Moser     as   a    sales      representative        on    July       9,    2003.      Her

responsibilities         involved   calling         on    potential        customers   and

selling outdoor advertising space, such as billboard space.                             She

was one of nine sales representatives in the Greensboro office,

seven of whom were men.             As a sales representative, Moser was

required to report to the office for a short time at the beginning


                                          2
and end of every day, but she otherwise spent her work time outside

of the office. Moser and her fellow sales representatives operated

in an open area with no partitions or walls.      Her supervisor was

sales manager Eddie Jones, who in turn reported to general manager

Dan O’Shea.

       Moser’s time at Fairway was a rocky one.     She had disputes

with several Fairway employees, sometimes resulting in heated

exchanges.     Although Moser was on the receiving end of much

objectionable behavior, she at times contributed to the less than

professional atmosphere at Fairway.       For example, she sometimes

called other employees names, she joked that she was smarter than

they were, and she once shot other employees with a water gun.     On

one occasion, she “dressed . . . [Jones] down” in front of O’Shea

after a sales meeting in which she felt that she was being treated

unfairly.     J.A. 282.     Another time, she was in Jones’s office

complaining about the behavior of another sales representative.

When the meeting was not going as she had hoped, she told Jones,

“You’re getting on my nerves” and “walked off.” J.A. 257 (internal

quotation marks omitted). Moser received written warnings for both

of these incidents.

  B.   Moser’s Complaints Concerning Other Sales Representatives

       Moser’s primary antagonist in the office among the salesmen

was George Wilkes.        Moser and Wilkes were very competitive and

often needled each other, leading to escalating conflicts that


                                    3
sometimes required intervention and resulted in verbal reprimands.

Even when the two were not openly hostile, Wilkes often irritated

Moser.   For example, he asked her about her personal life and tried

to set her up with men; he commented that he thought she would have

an affair with someone from the office; he once told her to slow

down because she was “bouncing,” J.A. 308 (internal quotation marks

omitted); and once he made a comment about her backside.          He

smacked her on the bottom with a water bottle on one occasion.    He

also called her a “dingbat” and a “dumb blonde” after she had an

accident while driving a company car. J.A. 242 (internal quotation

marks omitted). Moser complained to O’Shea about Wilkes’ behavior,

specifically mentioning his popping her on the bottom with the

bottle and a number of non-sexual comments he made to her.       She

lodged similar complaints about Wilkes to Jones.

       Moser also had a few unpleasant interactions with sales

representative Kelly Phipps, although she admits that she had no

“real problem[]” with him.     J.A. 322.   On one occasion, Phipps

asked her if she was gay.   On another, Phipps told her that he felt

like she dressed like a man, and he “went to touch [her] breast.”

J.A. 255.     She rebuffed him, resulting in only his fingertips

touching her.   Another time, Phipps told Moser that he “would do”

her.   J.A. 321.

       Although Moser identifies sales representative Tom Poe as a

friend and the only person she felt “comfortable talking with” at


                                  4
Fairway,      J.A.     317,    he   also    was    guilty    at    times    of   acting

unprofessionally toward her.              For example, Poe once asked Moser if

she was wearing a thong and if she had had sex with her then-

current boyfriend.            He suggested that she find someone with whom

she could have casual sex.                 He said he himself would consider

having sex with her if he were not married.                        Poe talked about

another woman suffering from premenstrual syndrome and told Moser

details of how he had sex with his wife.                     He also told her how

female clients used to rub their breasts against him.                      One time Poe

picked Moser up around the waist and carried her around, trying to

“pull    up    [her]    skirt.”       J.A.       309   (internal    quotation       marks

omitted).      Although Moser did not explain why she thought Poe did

that, she testified that at the time she “didn’t think [he] meant

anything by it,” and she soon “forgot about” the incident.                          J.A.

310.    Moser admitted that she and Poe “did joke around.”                   J.A. 312.

                        C.    Complaints Concerning Jones

       Moser    experienced         far    more    serious    problems       with     her

supervisor, Jones.           Jones once told Moser she was a “hottie,” J.A.

295 (internal quotation marks omitted), and made a similar comment

on another occasion.            He once said to Wilkes (in front of Moser)

that Moser seemed to come by Jones’s house whenever Jones’s wife

was not around.         Jones told Moser one time on a car trip that he

“would do [her] in a heartbeat.”                   J.A. 300 (internal quotation

marks omitted).        Another time, he said, “It’s a good thing you work


                                             5
out, because you don’t have a boyfriend to have sex with.”                  J.A.

306 (internal quotation marks omitted).                He once showed her a

pornographic picture of a little boy “with a very large penis” and

told her that it was him when he was young.               J.A. 301.   When she

told him that that was very inappropriate and pinched him, Jones

told her that if she pinched him again, he would grab her breast.1

He told her on one occasion that he liked small breasts, which she

understood to refer to her.           Finally, Jones once commented to

another male employee, in front of Moser, “[W]e need to talk to

Serena about different sexual techniques.”                J.A. 307 (internal

quotation marks omitted).

       Jones also talked to Moser on several occasions about how to

tell how long a man’s penis is and how he liked women’s breasts and

bottoms. In Moser’s presence, Jones commented one time to Poe that

he could help a particular woman with back problems by having sex

with       her   “doggy-style.”   J.A.       286   (internal   quotation   marks

omitted).        On another occasion, he and Poe agreed in front of Moser

that they “would do [a particular woman] in a heartbeat.”                  J.A.

287.

       One day, before an upcoming conference, Jones told Moser to

“bring a bikini [because] there’s a hot tub at the hotel we can



       1
      Moser testified to this fact in her deposition, but shortly
before, in the same deposition, she had testified that Jones had
threatened to “grab [her] butt” rather than her breast. J.A. 151
(internal quotation marks omitted).

                                         6
use.”    J.A. 293 (internal quotation marks omitted).   He also told

Moser that he “care[d] for” her and that he otherwise would have

fired her for inappropriate behavior.      J.A. 270, 300 (internal

quotation marks omitted).     One time when Moser and Jones were

trying to resolve a disagreement, Jones “just threw his hands and

arms up into the air and said, ‘But, Serena, I love you.’”     J.A.

303.    He used to ask Moser what she was cooking for dinner and

would say that he would not come over if she was not making

something he liked.    Once when Moser told him that she would like

to get married within five years, he told her that he would be

divorced within that time frame.

       Unfortunately, Jones’s unwelcome conduct toward Moser was not

limited to the verbal.    One day when Jones was driving Moser and

some others in his car—Moser and Jones were in the front seat—Jones

placed his hand on Moser’s left thigh at least three times, each

time for “a couple of minutes” until Moser squirmed away from him.

J.A. 285.     Jones once slid his arm around Moser’s waist at an

after-work-hours reception, causing Moser to “f[a]ll back into a

crowd of people” as she tried to extricate herself.       J.A. 236.

Moser recalled two times when Jones hugged her from the side,

squeezing her shoulder.     At least two times, Jones hugged Moser

after they had gone together to the YMCA to work out.      And, one

evening when the two were at a bar with friends, Jones hugged her

and kissed her head when she left.       Jones also “would eyeball


                                   7
[Moser] up and down constantly,” J.A. 268, and looked down Moser’s

blouse on several occasions, often forcing her to cover herself

when she sensed Jones was in position to look.

     Moser often objected to Jones’s sexual comments and actions

when they occurred. As a result, Jones became increasingly hostile

toward her and repeatedly expressed concern to Moser that she was

going to claim that he had sexually harassed her.   Moser described

the uncomfortable pattern that developed:

     [Jones] would make some kind of sexual advance toward me
     and I would say no or I would confront him on it to get
     him to understand it makes me uncomfortable per his
     request and he would get really mad and start yelling.
     Then, later on, he would be real nice and make some other
     advance toward me and the whole cycle would start over
     again.

J.A. 386.

     One of the most upsetting incidents with Jones occurred just

12 days before Moser was fired.       On the day in question, Jones

called Moser into his office after a sales meeting.   He opened the

door only a couple of feet and when she walked in he “cornered”

her, “came right up on [her] person,” “pushed [her] behind the back

of the door,” “look[ed] down [her] blouse,” and shut the door.

J.A. 266, 294.   As he backed away from her and began to sit down in

a chair, he said, “Serena, what do we need to do to get our

relationship back on track?”    J.A. 266 (internal quotation marks

omitted).   The incident ended when she said that she did not know

what they should do.    Moser also described another bizarre event


                                  8
in which Jones “walked up to [her] and just yanked [her] out of

[her] chair.”   J.A. 386.

      As a result of the mistreatment she received, many times in

front of other Fairway employees, Moser felt she “had to work ten

times harder to earn people’s respect.”      J.A. 356.   As the abuse

began to escalate in January and February of 2004, she became very

anxious.   The stress prevented her from sleeping, which, in turn,

affected her work performance. She became frustrated and depressed

and eventually consulted with a counselor to help her “deal with

the offensive behaviors at Fairway.”      J.A. 396.

                      D.    Moser’s Termination

      According to Fairway’s answers to interrogatories produced as

discovery in the present case, general manager O’Shea decided to

terminate Moser in late June 2004, effective immediately, because

of what Fairway contends were “constant conflicts with other staff

members that were instigated by [Moser], her condemnation of

management, her disruptive disposition, her failure and refusal to

cooperate with others and her rude, arrogant and condescending

treatment of others.”      J.A. 652.   Moser was called into O’Shea’s

office, where Jones told her the news, and O’Shea told Moser, “I

back up [Jones].”    J.A. 273 (internal quotation marks omitted).

When Moser asked why she was being let go, both men told her that

she no longer appeared happy to work at Fairway and no longer fit

in.


                                   9
                            E.    Moser’s Lawsuit

     Moser brought this action against Fairway in the district

court, alleging violations of Title VII of the Civil Rights Act of

1964,    namely,   quid    pro    quo       and   hostile   environment      sexual

harassment, retaliatory discharge based on Moser’s complaints of

sexual    harassment,     and    discriminatory      discharge      based    on   her

gender.      She   also    alleged      a    state   law    claim   for     wrongful

termination in violation of North Carolina public policy.                         The

district court granted summary judgment in favor of Fairway on all

claims.    The court disposed of the quid pro quo and discriminatory

discharge claims on the ground that Moser failed to properly

contest Fairway’s motion with regard to those claims under the

court’s local rules.        As for the hostile environment claim, the

court determined that the forecasted evidence was insufficient to

create a prima facie case because it could not support a reasonable

inference that the unwelcome sexual conduct was sufficiently severe

or pervasive to alter the terms of her employment.                        Regarding

retaliation, the district court noted that Moser relied only on her

alleged complaints about Wilkes’s behavior to show that she had

engaged in protected conduct, but she failed to forecast evidence

that her complaints about Wilkes covered sexual or gender-based

harassment.    Finally, the court ruled that Moser’s violation of

North Carolina public policy claim failed because Moser did not

point to evidence tending to show that Jones continually made


                                            10
sexual advances toward her and because the court was not aware of

any such evidence.


                                         II.

     Moser first argues that the district court erred in ruling

that the evidence she forecasted was insufficient to create a prima

facie case of hostile environment sexual harassment.                   We agree

there is sufficient evidence to warrant a jury trial on this issue.

     We review a district court’s grant of summary judgment de

novo, viewing any facts and inferences drawn from them in the light

most favorable to Moser, the non-moving party.                  See Evans v.

Technologies Applications & Serv. Co., 

, 958 (4th Cir.

1996).     Summary    judgment      is    appropriate    “if   the    pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled

to judgment as a matter of law.”              Fed. R. Civ. P. 56(c).

     Title VII of the Civil Rights Act of 1964 prohibits an

employer from “discriminat[ing] against any individual with respect

to   his   compensation,     terms,        conditions,    or   privileges       of

employment, because of such individual’s . . . sex.”                 42 U.S.C.A.

§ 2000e-2(a)(1).      This prohibition “not only covers ‘terms’ and

‘conditions’   in    the   narrow    contractual      sense,   but    evinces    a

congressional intent to strike at the entire spectrum of disparate

treatment of men and women in employment.”               Oncale v. Sundowner

                                         11
Offshore Servs., Inc., 

, 78 (1998) (internal quotation

marks omitted).      Thus, it is a violation of Title VII to maintain

a sexually hostile work environment, i.e. a “workplace . . .

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.”

Harris v. Forklift Sys., Inc., 

, 21 (1993) (internal

quotation   marks    &   citation      omitted).    To     establish      a   hostile

environment sexual harassment claim, a plaintiff must show conduct

that “(1) was unwelcome, (2) was based on her sex, (3) was

sufficiently severe or pervasive to alter the conditions of her

employment and create an abusive work environment, and (4) was

imputable to her employer.”              Ocheltree v. Scollon Productions,

Inc., 

, 331 (4th Cir. 2003) (en banc).

     The    district     court     determined       that       the    evidence     was

insufficient to create a genuine issue of material fact regarding

the third element.          In deciding as a matter of law whether

harassment was sufficiently severe or pervasive to bring it within

Title   VII’s    purview,    we    must       examine    the    totality      of   the

circumstances,    including       “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.”

.         This standard is designed to “filter out


                                         12
complaints attacking the ordinary tribulations of the workplace,

such as the sporadic use of abusive language, gender-related jokes,

and occasional teasing.”    Faragher v. City of Boca Raton, 

, 788 (1998) (internal quotation marks omitted). “Unlike other,

more direct and discrete unlawful employment practices, hostile

work environments generally result only after an accumulation of

discrete instances of harassment.” Jordan v. Alternative Resources

Corp., 

, 339 (4th Cir. 2006), cert. denied, 

(2007).      “Harassment reaches the sufficiently severe or

pervasive level when it creates ‘an environment that a reasonable

person would find hostile or abusive’ and that the victim herself

‘subjectively perceive[s] . . . to be abusive.’” Jennings v. Univ.

of N.C., 

, 696 (4th Cir. 2007) (en banc) (quoting

), cert. denied, 

(U.S. Oct.

1, 2007).      In this case, Moser clearly forecasted sufficient

evidence that she perceived her work environment to be abusive.

The issue on which we focus is whether this evidence created a

genuine issue of material fact regarding whether Moser’s perception

was reasonable.

     We have recognized “that the line between a merely unpleasant

working environment and a hostile or deeply repugnant one” is

sometimes difficult to locate.      Hopkins v. Baltimore Gas & Elec.

Co., 

, 753 (4th Cir. 1996) (internal quotation marks &

alteration   omitted).     While   this   case   demonstrates   just   how


                                   13
difficult placing that line can be, we nonetheless conclude that

the district court erred in granting summary judgment on Moser’s

hostile environment claim.

       Even without taking into account the conduct of Moser’s fellow

sales representatives, a reasonable jury could determine that Jones

constantly made Moser reasonably feel that she was his sexual prey.

By telling Moser that she was a hottie, that he would like to see

her in a bikini, or that he “would do [her] in a heartbeat,” J.A.

300, Jones communicated to Moser that he wanted to have sex with

her.    Furthermore, the record, viewed in the light most favorable

to Moser, showed that Jones regularly took opportunities to treat

her in a sexual way.    He slipped his arm around her waist, hugged

her, repeatedly placed his hand on her thigh during a car trip, and

“eyeball[ed] [Moser] up and down constantly.”     J.A. 268 (emphasis

added).    He also repeatedly sought to look down her blouse.

       Although not quite as severe, many of Jones’s other actions

could be found by a reasonable jury to have contributed to the

pervasiveness of the unwanted sexual conduct.      Such a jury could

find that many statements or actions that Moser otherwise might

have perceived as simply boorish or inappropriate under other

circumstances reasonably were humiliating to her in light of the

sexually predatory relationship Jones had developed with her.    For

example, Jones’s subjecting Moser to his general comments about

what parts of the female anatomy he enjoyed and what sex acts he


                                  14
would like to perform on other women could reasonably be expected

to make Moser much more uncomfortable because she knew that he was

interested in her body specifically and would like to perform the

same acts on her.         See 

(concluding that

a   jury    could   reasonably      find    that    two   incidents      of    direct

harassment of the plaintiff “were more abusive in light of the

general,      sexually      charged    environment”         created      by     other

inappropriate sexual conduct); see also Nat’l R.R. Passenger Corp.

v. Morgan, 

, 115 (2002) (“Hostile environment claims

are different in kind from discrete acts.                    Their very nature

involves repeated conduct. . . .               Such claims are based on the

cumulative     effect     of   individual      acts.”).     Similarly,        Jones’s

showing Moser a pornographic picture, talking about male sex

organs, noting that Moser did not have anyone to have sex with, and

saying that he and another employee needed to talk to Moser about

sexual     techniques     could    reasonably      have   made   Moser   extremely

uncomfortable for the same reason. And, Jones’s telling Moser that

he cared for her or loved her and suggesting that he would like to

come   over   to    her    house   also    reasonably      could   be    viewed    as

reiterations of the sexual desire for Moser that Jones had already

expressed.

       Indeed, the fact that Moser was a specific object of Jones’s

sexual attention and not just a witness to inappropriate sexual

behavior concerning other women makes much of the conduct that


                                          15
Moser allegedly endured arguably more severe--more humiliating in

an objective sense--than the conduct we found sufficient to support

a   plaintiff’s    verdict   in   Ocheltree.    In   Ocheltree,      a    female

employee was subjected every day to graphic sexual talk from her

male coworkers, including descriptions that often portrayed women

in a “sexually subservient and demeaning light.”           

.      She was once sung a vulgar song that arguably used

her as the subject, and “something sexual” was done to a mannequin

anytime Ocheltree walked by.        

(internal quotation

marks omitted).     Here, in contrast, it was Moser’s own body that

her   supervisor    was   “constantly”    “eyeballing”   “up   and       down”--

particularly when Jones was able to look down her blouse.                   And

while the coworkers in Ocheltree discussed having sex with their

wives and girlfriends, Jones told Moser that he wanted to have sex

with her and stated that he and another employee should talk to her

about different sexual techniques.          While the male employees at

Ocheltree touched a mannequin in sexual ways in front of the

plaintiff, Jones actually touched Moser--in the most egregious

examples, by placing his hand on her thigh several times during a

car trip as she squirmed away to avoid his touch and by pushing her

behind a door in his office and looking down her blouse.

      Moreover, in our view, the evidence forecasted of Jones’s

sexual conduct was substantially different from that in Weiss v.

Coca-Cola Bottling Co. of Chicago., 

(7th Cir. 1993),


                                     16
on   which     the    district   court   relied.        There,   the   plaintiff’s

supervisor “asked her for dates, called her a ‘dumb blond,’ put his

hand on her shoulder several times, placed ‘I love you’ signs in

her work area [during one week] and attempted to kiss her in a

bar.”        

Seventh Circuit concluded that the

district court had properly granted summary judgment because the

incidents were “relatively isolated” and not sufficiently serious

considering their infrequency.                

Moser

forecasted evidence that, viewed in the light most favorable to

her,       showed    that   Jones’s   abuse   was    relentless.       And,   it   is

important to emphasize that all of the numerous incidents Moser

described       occurred     during   Moser’s       less-than-a-year    tenure     at

Fairway.        Cf. 

(holding that male

supervisor’s alleged harassment of male employee, including bumping

into employee, positioning magnifying glass over his crotch, giving

him a congratulatory kiss at his wedding, staring at him in the

bathroom, commenting on his appearance, and making inappropriate

sexual comments, was not sufficiently severe or pervasive when the

alleged incidents occurred only intermittently over a seven-year

period).

       In holding that the forecasted evidence here was sufficient,

we emphasize that a reasonable jury could infer from the evidence


       2
      The supervisor “also may have twice attempted to kiss her in
the office, though [the plaintiff’s] deposition testimony [was]
contradictory on th[at] point.” 

hostility that Jones developed toward Moser when she

repeatedly objected to his sexual behavior further interfered with

her opportunity to have an effective working relationship with her

supervisor and contributed heavily to the abusiveness of the

working environment.    The cycle Moser described of Jones engaging

in sexually inappropriate conduct toward her and then lashing out

at her as she attempted to distance herself from him left Moser in

an impossible situation.      In this respect, the evidence in this

case resembles that of Beardsley v. Webb, 

(4th Cir.

1994).   There, the plaintiff, a second lieutenant in the sheriff’s

office, alleged that her supervisor harassed her for a five-month

period, thereby prompting her resignation.      The alleged harassment

included the supervisor calling the plaintiff “honey” and “dear” in

front of subordinates; standing behind the plaintiff during roll

call and touching her shoulders; and, following the plaintiff’s

complaint that this made her and her husband (also a member of the

sheriff’s department) uncomfortable, massaging the plaintiff’s

shoulders   while   staring   at   her   husband.   It   also   included

unjustifiably accusing her of having an affair with a deputy,

asking her what kind of underwear she wore and what type of birth

control she used, and ordering her to drive him to pick up his car

from a repair shop and stating that “it was his turn to make out in

the parking lot” with her.     

quotation marks

omitted).   After the plaintiff complained, she was given the “cold


                                   18
shoulder” by her supervisor and her relationship with the deputies

suddenly soured.   

the defendant’s argument

that the plaintiff’s evidence was not substantial enough to require

submission to the jury of the question of whether the supervisor’s

discriminatory conduct was sufficiently severe and pervasive to

make out a sexual harassment claim, stating that: “In combination,

his acts altered the condition of [the plaintiff’s] employment and

created an objectively abusive work environment.”    

conclude that the same is true here.

     In sum, a jury could reasonably conclude from the evidence

forecasted that Jones was unyielding in his sexual treatment of

Moser, crippling her ability to have a healthy working relationship

with him, and causing her significant personal anguish as she

attempted to avoid his sexual behavior and deal with the antagonism

he directed toward her.      On this basis, a rational jury could

conclude that Moser reasonably found her working environment to be

both hostile and abusive such that the terms of her employment were

altered.   We therefore reverse the grant of summary judgment on

Moser’s hostile environment claim.



                                 III.

     Moser next maintains that the district court erred in granting

summary judgment against her on her quid pro quo sexual harassment

claim.   We disagree.


                                  19
     Although    quid   pro   quo    and    hostile   environment   sexual

harassment claims both arise under Title VII, each type of claim

requires proof of an element that the other does not.          To wit, to

establish quid pro quo liability, a plaintiff must prove “that a

tangible employment action resulted from a refusal to submit to a

supervisor’s sexual demands.”       Burlington Indus., Inc. v. Ellerth,

, 753 (1998).       In contrast, to establish a hostile

environment claim, the plaintiff must prove that the objectionable

conduct was “severe or pervasive.”         

Moser’s quid pro quo claim asserted in her complaint, Moser

alleged that her “express rejection of [Jones’s] demands for sexual

favors caused her termination.”            J.A. 19.   The district court

granted summary judgment against Moser on this claim (as well as on

her discriminatory discharge claim), stating:

     Under these facts, the court considers summary judgment
     on those claims to be uncontested. See L.R. 7.3(k), L.R.
     56.1(e).    Because Defendants’ uncontested argument
     appears to be reasonable, summary judgment on those
     grounds will be granted.

J.A. 42.3   “We review the district court’s application of its local

rules for an abuse of discretion.”           See Northwest Bank & Tr. v.

First Ill. Nat’l Bank, 

, 725 (8th Cir. 2003).

     Middle District of North Carolina Local Rule 7.3(k) provides:

     The failure to file a brief or response within the time
     specified in this rule shall constitute a waiver of the


     3
      Moser does not challenge the district               court’s   ruling
regarding her claim of discriminatory discharge.

                                     20
     right thereafter to file such brief or response, except
     upon a showing of excusable neglect.           A motion
     unaccompanied by a required brief may, in the discretion
     of the court, be summarily denied.           A response
     unaccompanied by a required brief may, in the discretion
     of the court, be disregarded and the pending motion may
     be considered and decided as an uncontested motion. If
     a respondent fails to file a response within the time
     required by this rule, the motion will be considered and
     decided as an uncontested motion, and ordinarily will be
     granted without further notice.

M.D.N.C. Local Rule 7.3(k).          Middle District of North Carolina

Local Rule 56.1(e) states:

     In a responsive brief the party having made the
     challenged claim may, within 30 days after service of the
     summary judgment motion and brief, file with the court a
     response that sets out the statements required by
     LR7.2(a)(1)-(3) and also sets out the elements that it
     must prove (with citations to supporting authority), and
     the specific, authenticated facts existing in the record
     or set forth in accompanying affidavits that would be
     sufficient to support a jury finding of the existence of
     the disputed elements. The failure to file a response
     may cause the court to find that the motion is
     uncontested.

M.D.N.C. Local Rule 56.1(e).

     We   find   no   abuse   of   discretion   in   the   district   court’s

application of its local rules.            Moser’s brief to the district

court argued that Moser had presented a prima facie case of sexual

harassment amounting to a hostile work environment. The brief then

proceeded to present facts that Moser contended demonstrated that

the harassment was sufficiently severe or pervasive to impose

liability.   It included no mention of quid pro quo liability or the

elements that would establish such liability, and it did not

identify any issue of material fact concerning those elements.

                                      21
Especially considering that Moser’s brief did not assert that she

could prove sexual harassment liability if the harassment were not

sufficiently severe or pervasive to create a jury issue on hostile

environment, the district court’s application of its local rules

was reasonable.


                                    IV.

     Moser next contends that the district court erred in granting

summary judgment against her on her illegal retaliation claim.           We

disagree.

     The relevant portion of Title VII provides:          “It shall be an

unlawful    employment   practice   for   an   employer   to   discriminate

against any of his employees . . . because he has opposed any

practice made an unlawful employment practice by this subchapter.”

42 U.S.C.A. § 2000e-3(a).     Moser sought to establish her Title VII

retaliation claim under the well-known McDonnell-Douglas burden-

shifting proof scheme.     See McDonnell-Douglas Corp. v. Green, 

, 802-04 (1973).      A plaintiff establishes a prima facie

case of retaliation under this scheme when she presents evidence

that 1) she was engaged in a protected activity, 2) she was

subjected to an adverse employment action, and 3) there was a

causal link between the two.4       See Beall v. Abbot Labs., 

      When a plaintiff makes such a showing, the burden then shifts
to the employer to rebut the presumption of retaliation by
articulating a legitimate nonretaliatory explanation for its
actions. See Carter v. Ball, 

, 460 (4th Cir. 1994).

                                    22
614, 619 (4th Cir. 1997).   In order to satisfy the first element,

a plaintiff must proffer sufficient evidence that she had an

objectively reasonable belief that she was complaining of conduct

that constituted a Title VII violation.   See 

.

     In granting summary judgment against Moser on this claim, the

district court concluded that Moser had failed to create a genuine

issue of material fact regarding whether she engaged in a protected

activity. The court rejected Moser’s claim that she “complained to

her employer about unlawful harassment” because the complaints she

relied on as constituting protected activity--“complaints about

Wilkes”--did not concern conduct that could reasonably believed to

be prohibited by Title VII because it was mostly unrelated to

gender.   J.A. 48.

     Although Moser maintains that she in fact forecasted evidence

that she engaged in protected activity, she does not directly

challenge the district court’s ruling that she failed to create a

genuine factual issue regarding whether she reasonably believed

that the conduct of Wilkes about which she complained violated

Title VII.    Moser now argues that she forecasted evidence of

complaints about Jones’s conduct that a jury could reasonably find



The plaintiff then must prove that the offered explanation is false
and that retaliation was the actual reason for the adverse action.
See Jiminez v. Mary Washington College, 

, 377-78 (4th
Cir. 1995).

                                23
constituted conduct protected under Title VII.               In so doing, she

does not so much as acknowledge--let alone challenge--the district

court’s determination that, in opposing Appellees’ summary judgment

motion on her retaliation claim, Moser relied exclusively on her

complaints about Wilkes.       We need not address the issue of whether

Moser forecasted evidence of the record of her complaints of

conduct of people other than Wilkes in light of the district

court’s unchallenged determination that she did not present that

legal theory in the district court.            See Muth v. United States, 

, 250 (4th Cir. 1993) (refusing to reverse summary judgment

on the basis of an issue raised for the first time on appeal).                   We

therefore    affirm   the   grant   of    summary       judgment   on    Moser’s

retaliation claim.


                                     V.

     Moser finally argues that the district court erred in granting

summary judgment against her on her state law claim that she was

terminated in violation of North Carolina public policy since she

was fired for refusing the sexual advances of her supervisor.                   The

district court ruled against Moser on the basis that she did not

highlight any forecasted evidence in support of her claim that

Jones continually made sexual advances toward her and the court was

not aware of any such evidence.                 Moser now argues that she

forecasted   evidence   sufficient       to    create   a   genuine     issue   of

material    fact   regarding   whether        Jones   implicitly   conditioned

                                     24
Moser’s employment upon her consenting to have sex with him.                        We

disagree.

     Although North Carolina employees are generally terminable at

will, an exception exists for discharges made in contravention of

North Carolina public policy.             See Coman v. Thomas Mfg. Co., 

, 447 (N.C. 1989).              We have held that “[w]hatever the

breadth of the Coman exception, it most definitely includes firings

resulting from an employee’s refusal to follow his employer’s

instructions to violate the law.” Harrison v. Edison Bros. Apparel

Stores, Inc., 

, 534 (4th Cir. 1991).                    Reasoning that a

supervisor’s requiring an employee to have sex with him in order to

retain     her   job     would    amount        to   requiring       her   to   commit

prostitution,      we   have     held    that    terminating        an   employee   for

refusing    such   demands       constitutes         a   wrongful    termination     in

violation of North Carolina public policy.                  See 

district court, see no evidence that Jones

conditioned Moser’s continuing employment on her consent to have

sex with him.      Jones’s constant lechery (and eventual hostility)

may well have ruined any opportunity Moser had to have a successful

working relationship with him and caused Moser tremendous anguish

in the process.        However, Moser did not forecast any evidence that

he sought to require her to have sex with him or even evidence that

he asked her to have sex.               The closest she came in that regard

would have been her testimony concerning an incident in which Jones


                                          25
pushed her behind the back of his office door before backing up and

asking, “Serena, what do we need to do to get our relationship back

on track?”    J.A. 266.   We conclude that it would be simply too big

a leap for a jury to be able to reasonably find that with that

question he was asking her for some sort of sexual favor.           In this

regard, it is important to emphasize that there was no evidence

that Jones had ever actually asked Moser for sex before; that at

the time of the incident she did not believe he was asking for sex;

and that when she responded that she did not know what they could

do to improve their relationship, he gave no indication that he was

suggesting anything sexual. On these facts, any finding that Jones

actually     propositioned   Moser   could    only   be    based   on   rank

speculation.      We   therefore   conclude   that   the   district     court

correctly granted summary judgment on this cause of action.              See

Beale v. Hardy, 

, 214 (4th Cir. 1985) (“The nonmoving

party . . . cannot create a genuine issue of material fact through

mere speculation.”).


                                   VI.

     In sum, because we conclude that Moser forecasted evidence

sufficient to create a genuine issue of material fact regarding

whether the sexual conduct she complained of was sufficiently

severe or pervasive to create a hostile environment, we reverse the

district court’s grant of summary judgment on that claim, and we



                                     26
remand to the district court for further proceedings.   Finding no

other error, we otherwise affirm.


                                                AFFIRMED IN PART,
                                                REVERSED IN PART,
                                                     AND REMANDED




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