Vacated by Supreme Court, June 30, 2006
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-1483
VESTER KAY SCURLOCK-FERGUSON,
Plaintiff - Appellant,
versus
CITY OF DURHAM,
Defendant - Appellee.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
District Judge. (CA-01-1122-1)
Argued: September 19, 2005 Decided: November 17, 2005
Before SHEDD, Circuit Judge, HAMILTON, Senior Circuit Judge, and
Joseph R. GOODWIN, United States District Judge for the Southern
District of West Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Marcus A. Jackson, Durham, North Carolina; Olubayo Oyedele
Agbetunsin, Durham, North Carolina, for Appellant. Joel Miller
Craig, KENNON, CRAVER, BELO, CRAIG & MCKEE, P.L.L.C., Durham, North
Carolina, for Appellee. ON BRIEF: Erin M. Locklear, KENNON,
CRAVER, BELO, CRAIG & MCKEE, P.L.L.C., Durham, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Vester Kay Scurlock-Ferguson brought this action against the
City of Durham, North Carolina (“the City”), asserting several
federal and state law claims arising from her employment with the
City. On the City’s motion, the district court entered summary
judgment against Scurlock-Ferguson on all of her claims. In this
appeal, Scurlock-Ferguson argues that the district court erred in
granting summary judgment on her claim that the City retaliated
against her in violation of Title VII of the Civil Rights Act of
1964 and that it violated the Family and Medical Leave Act
(“FMLA”). Finding no error, we affirm.
I
Federal Rule of Civil Procedure 56(c) provides that summary
judgment “shall be rendered forthwith 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 a judgment as a matter of law.” We review a district court’s
grant of summary judgment de novo, and we view all facts and
inferences in a light most favorable to the nonmoving party. Hill
v. Lockheed Martin Logistics Mgt., Inc., 354 F.3d 277, 283 (4th
Cir. 2004) (en banc), cert. dismissed, 125 S. Ct. 1115 (2005).
2
Scurlock-Ferguson was employed by the City from 1978 until her
termination on December 31, 2000. For a number of years, Scurlock-
Ferguson worked in the City’s Human Resources Department as an
employee relations coordinator and human resource analyst. At
times pertinent to this appeal, the director of this department was
Alethea Bell, and Scurlock-Ferguson’s immediate supervisor in the
department was Bernard Farmer.
Beginning in 1998, Scurlock-Ferguson began to perceive that
she was being harassed and treated unfairly by Bell, Farmer, and
other City employees. In March 2000, Scurlock-Ferguson was denied
a promotion within the Human Resources Department.1 In April,
Scurlock-Ferguson filed a charge with the Equal Employment
Opportunity Commission (“EEOC”) claiming that she had been denied
the promotion and harassed on account of her race and gender.
On May 1, the City placed Scurlock-Ferguson on paid
administrative leave while it investigated the circumstances
surrounding her travel on April 11 to an out-of-town workshop.
Scurlock-Ferguson had submitted documentation concerning this trip
on April 17. In reviewing this documentation, Farmer noticed that
Scurlock-Ferguson had claimed reimbursement for 459 miles, but the
actual round trip distance was approximately 254 miles. Farmer
also discovered additional problems relating to Scurlock-Ferguson’s
trip, including her failure to obtain approval for an overnight
1
All of the pertinent dates we hereafter refer to are in 2000.
3
stay at the City’s expense. In June, the City issued a written
warning to Scurlock-Ferguson for failure to follow City policy for
overnight travel related to her attendance at this workshop.
Scurlock-Ferguson did not lose any pay or benefits as a result of
this leave and warning.
In July, the City transferred Scurlock-Ferguson from the Human
Resources Department to the Budget Department. The impetus for
this transfer was a discussion between Bell and Budget Director
Laura Gill. During this discussion, Bell and Gill jointly agreed
to swap Scurlock-Ferguson and another employee, Steve Martin, who
was not well-suited to his Budget Department position. Bell and
Gill thought that the transfers would place both employees in a
better working situation. Scurlock-Ferguson was told that this
transfer would be a temporary assignment to see how well she
performed in the Budget Department. The City did not provide any
formal Budget training to Scurlock-Ferguson; rather, it expected
her to learn her new job primarily through informal training, which
included seeking guidance from her supervisors and co-workers. The
transfer did not affect Scurlock-Ferguson’s salary or benefits.
During the time Scurlock-Ferguson was on administrative leave
and employed in the Budget Department, the City discovered
performance shortfalls with her prior work in the Human Resources
Department. Specifically, the City discovered that Scurlock-
Ferguson had submitted late and inaccurate reports to the
4
Employment Security Commission and that she had failed to maintain
a log of disciplinary actions against City employees.
By late October, Gill concluded that Scurlock-Ferguson was a
poor fit for the Budget Department. Consequently, Gill thought it
would be best for Scurlock-Ferguson to return to the Human
Resources Department. When Bell was informed of this fact, she
responded that she wanted to retain Martin in her department.
Scurlock-Ferguson has a medical history of hypertension, high
blood pressure, mild depression, and stress. On November 2,
Scurlock-Ferguson obtained a note from her family physician, Dr.
Timothy O’Donnell, stating that she was invoking the FMLA and
requesting that she be excused for medical leave until further
notice. Dr. O’Donnell provided this note to Scurlock-Ferguson at
her request without making any medical observation of her and
without making any determination as to whether she could in fact
work.2 Scurlock-Ferguson presented this note to the City and
obtained medical leave. Scurlock-Ferguson subsequently obtained
and presented a second note from Dr. O’Donnell, in which he stated
that she reported to him that she could return to work on December
13. Again, Dr. O’Donnell prepared this note solely because of
Scurlock-Ferguson’s request.
2
Dr. O’Donnell testified in his deposition that he did not
prohibit Scurlock-Ferguson from working and, in fact, would have
permitted her to work. See J.A. 173-77.
5
Scurlock-Ferguson returned to work on December 13. Because of
uncertainty surrounding her department assignment (i.e., Budget or
Human Resources), Scurlock-Ferguson was sent home to await further
instructions. Thereafter, Bell and Gill consulted with the City
Manager about Scurlock-Ferguson’s status, and both women declined
to accept her in their departments. Gill declined because of
Scurlock-Ferguson’s poor performance in the Budget Department.
Bell declined because of Scurlock-Ferguson’s performance problems
and because Scurlock-Ferguson had been uncomfortable working in the
Human Resources Department.3 Presented with this information, the
City Manager notified Scurlock-Ferguson by letter dated December 19
that the City was terminating her employment effective December
31.4
II
Scurlock-Ferguson filed this lawsuit asserting causes of
action under Title VII and 42 U.S.C. § 1981 for hostile work
environment, discriminatory failure to promote, and retaliation;
under the FMLA for failure to return her to a comparable position
following her medical leave; and under state law for intentional
3
Bell had also consulted with Farmer, and Farmer recommended
that Martin (rather than Scurlock-Ferguson) continue in his
position in the Human Resources Department.
4
Scurlock-Ferguson subsequently filed a retaliation complaint
with the EEOC, and the EEOC issued her right-to-sue letters for
both of her complaints.
6
and negligent infliction of emotional distress. Following the
close of discovery, the City moved for summary judgment. In a
well-reasoned report, a magistrate judge recommended that the
district court grant the City’s motion on all of Scurlock-
Ferguson’s claims. See J.A. 187-212. The district court conducted
a de novo review and entered summary judgment against Scurlock-
Ferguson on all of her claims. See J.A. 224-25. Scurlock-Ferguson
only appeals the grant of summary judgment on her claims that the
City retaliated against her in violation of Title VII and that it
violated the FMLA. As set forth below, we find that the district
court did not err in granting summary judgment on these claims.
A.
We begin with Scurlock-Ferguson’s Title VII claim. Title VII
prohibits retaliation against an employee who has engaged in a
protected activity, such as filing a complaint of discrimination
with the EEOC. See 42 U.S.C.A. § 2000e-3(a). The City does not
dispute that Scurlock-Ferguson engaged in a protected activity by
filing the April EEOC complaint. Scurlock-Ferguson contends that
in response to this complaint the City retaliated against her by
(1) placing her on administrative leave pending the travel policy
violation investigation, (2) transferring her to the Budget
7
Department, and (3) terminating her employment.5 As Scurlock-
Ferguson notes, each of these employment decisions was made within
eight months after she filed her EEOC charge.
In analyzing the retaliation claim, the district court --
citing Laughlin v. Metropolitan Washington Airports Authority, 149
F.3d 253, 258 (4th Cir. 1998) -- applied the McDonnell-Douglas
burden-shifting framework that is generally applicable to Title VII
retaliation claims involving indirect proof. Under this framework,
the plaintiff bears the initial burden of establishing a prima
facie case of retaliation, which requires evidence that (1) she
engaged in a protected activity, (2) the defendant took an adverse
employment action against her, and (3) a causal connection exists
between the protected activity and the adverse action. If the
plaintiff establishes a prima facie case, then the burden shifts to
the defendant to rebut the prima facie case by articulating a
legitimate, non-discriminatory reason for the adverse employment
action. If the defendant articulates such a reason, then the
5
Scurlock-Ferguson did not object to the magistrate judge’s
recommendation that summary judgment be granted on her retaliation
claim to the extent the claim was based on the administrative leave
and transfer. See J.A. at 213-16, 221. Although Scurlock-
Ferguson’s failure to file an objection on these issues ordinarily
constitutes a waiver of her right to appeal the summary judgment on
these issues, see Diamond v. Colonial Life & Accident Ins. Co., 416
F.3d 310, 315-16 (4th Cir. 2005), we will nonetheless address them
because the district court conducted a de novo review, and the City
does not argue waiver on appeal (although it did argue waiver
below).
8
plaintiff must present evidence showing that the defendant’s
proffered reason is a mere pretext for intentional retaliation.
The district court concluded that the City articulated a
legitimate, non-discriminatory reason for placing Scurlock-Ferguson
on paid administrative leave and that she failed to establish that
this reason is pretextual. See J.A. 197-98. We hold that the
undisputed evidence in the record amply supports this conclusion.
Not only does it appear to be undisputed that the City placed
Scurlock-Ferguson on leave in order to investigate her violation of
City travel policy, but it also appears to be undisputed that she
did, in fact, violate the travel policy.6
The district court also concluded that Scurlock-Ferguson’s
transfer to the Budget Department is not a cognizable adverse
employment action because she did not lose any salary or benefits.
See J.A. at 198-99. Again, we hold that this conclusion is proper
based on the undisputed evidence in the record. See, e.g., James
v. Booz-Allen & Hamilton, Inc., 368 F.3d 371, 375-76 (4th Cir.),
cert. denied, 125 S. Ct. 423 (2004) (noting that a job reassignment
“can only form the basis of a valid Title VII claim if the
6
Scurlock-Ferguson argues that the length of time she was on
administrative leave violated City policy because it exceeded 10
days without written approval by the City Manager. We agree with
the district court that the evidence establishes that extensions of
leave were frequently made on oral approval and that the City
Manager was aware of her continued leave status. We also agree
that the City’s alleged violation of its own policy does not in any
event undermine the City’s proffered reason for placing Scurlock-
Ferguson on administrative leave. See J.A. at 198 n.2.
9
plaintiff can show that the reassignment had some significant
detrimental effect” and that absent “any decrease in compensation,
job title, level of responsibility, or opportunity for promotion,
reassignment to a new position commensurate with one’s salary level
does not constitute an adverse employment action even if the new
job does cause some modest stress not present in the old position”
(citation and internal punctuation omitted)).
The district court further concluded that Scurlock-Ferguson
failed to establish a prima facie case of retaliation regarding her
termination because she did not show a causal connection between
her EEOC charge and the termination, which occurred eight months
after she filed the charge. See J.A. at 199-202. In reaching this
conclusion, the district court also found that the City had
consistently given a legitimate reason (i.e., poor performance) as
the basis for the termination. See id. at 202. We need not decide
whether Scurlock-Ferguson established a prima facie case on this
aspect of her claim because we hold, in any event, that the City
has proffered a legitimate, non-discriminatory reason for the
termination, and that Scurlock-Ferguson has failed to establish
that the reason is pretextual.7
7
It is not clear whether the district court actually ruled on
the issue of pretext on this aspect of the retaliation claim.
However, the City argued below and on appeal that Scurlock-Ferguson
failed to establish that its proffered reason for the termination
is pretextual. Under these circumstances, we may affirm the
summary judgment on this basis. See United States v. Swann, 149
F.3d 271, 277 (4th Cir. 1998) (“we may affirm the district court’s
10
B.
We now turn to Scurlock-Ferguson’s FMLA claim. The FMLA
guarantees an eligible employee twelve workweeks of leave annually
“[b]ecause of a serious health condition that makes the employee
unable to perform the functions of the position of such employee,”
and it provides that the taking of such leave “shall not result in
the loss of any employment benefit accrued prior to the date on
which the leave commenced.” 29 U.S.C. §§ 2612(a)(1)(D),
2614(a)(2). Scurlock-Ferguson contends that the City violated the
FMLA by failing to restore her to the same or a comparable position
upon her return from medical leave in December.
In granting summary judgment for the City on the FMLA claim,
the district court, primarily relying on Rhoads v. F.D.I.C., 257
F.3d 373 (4th Cir. 2001), cert. denied, 535 U.S. 933 (2002), held
that Scurlock-Ferguson failed to meet her burden of presenting
evidence to establish that she had a serious health condition that
made her unable to perform the functions of her job.8 The district
judgment for any reason supported by the record, even if it is not
the basis that the district court used”). In doing so, we agree
with the district court that Scurlock-Ferguson’s contention that
the City provided different explanations for her termination is
without merit. See J.A. at 200-02.
8
In Rhoads, we held that the district court properly required
the FMLA plaintiff “to prove that she was afflicted with an
FMLA-qualifying condition, because otherwise she did not have any
right under the Act with which her employer could have interfered.”
257 F.3d at 384. Like the district court, we find Scurlock-
Ferguson’s attempt to distinguish Rhoads to be unpersuasive.
11
court concluded that Dr. O’Donnell’s medical records and deposition
testimony provide no support for Scurlock-Ferguson’s FMLA claim
because he did not treat her at the time she requested medical
leave, and he did not know of any medical reason why she would have
been unable to work during that time. Based on our review of the
record, we hold that the district court correctly decided this
issue. See J.A. 202-11.
III
Based on the foregoing, we affirm the district court’s grant
of summary judgment in favor of the City.
AFFIRMED
12