UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-1601
THUMBELINA BROWN,
Plaintiff - Appellant,
versus
MCLEOD REGIONAL MEDICAL CENTER OF THE PEE DEE,
INC.,
Defendant - Appellee.
Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(CA-02-3973-4)
Submitted: January 3, 2006 Decided: January 25, 2006
Before MICHAEL, TRAXLER, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Chalmers C. Johnson, Charleston, South Carolina, for Appellant.
Charles E. McDonald, III, OGLETREE, DEAKINS, NASH, SMOAK & STEWART,
P.C., Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Thumbelina Brown sues her former employer, McLeod
Regional Medical Center of the Pee Dee, Inc. (McLeod), for race
discrimination in her employment, in violation of Title VII and
section 1981. The district court granted summary judgment to
McLeod, and Brown appeals. We affirm for the reasons stated below.
I.
Brown, an African-American woman, began working as a
nursing assistant at the McLeod Gynecology and Obstetrics Unit in
1978. She moved to the position of unit secretary in 1998. On or
around May 26, 2000, Brown broke her ankle in a car accident and
underwent surgery. She requested a leave of absence after her
surgery because she was unable to return to work. In response,
McLeod requested that Brown’s doctor complete a “Medical
Certification.” McLeod also provided Brown with notice of her
Family and Medical Leave Act (FMLA) rights and directed her to
contact the McLeod Human Resources Office about short-term
disability benefits. On June 12, 2000, Dr. Angus McBryde completed
Brown’s medical certification, which indicated that Brown could not
return to work for at least three months. On July 17 McLeod
notified Brown that her request for a medical leave of absence was
approved but that the leave did not qualify for FMLA protection.
On August 14 Dr. McBryde completed a second medical certification,
2
which indicated that Brown could return to work provided she was
not required to stand or walk. Dr. McBryde wrote a note on
November 22 indicating that Brown could return to work with three
restrictions: she spend no more than ten minutes per hour on her
feet, she spend no more than five minutes per hour walking, and she
refrain from kneeling, bending, or carrying anything over three to
four pounds during the time on her feet. Although Brown was ready
to return to work, McLeod determined that Brown could not perform
the essential functions of the unit secretary position with these
restrictions; thus McLeod did not let her return.
Several months later, in April 2001, Dr. McBryde
completed another medical certification, which indicated that Brown
could return to work with the restriction of “no standing or
walking as part of the job.” J.A. 311. McLeod again did not allow
Brown to return to work. Soon thereafter, McLeod Work Recovery
Manager John Zelenka performed a work site evaluation to determine
if Brown could perform the essential functions of the unit
secretary position with the restrictions Dr. McBryde placed on her.
After talking to Dr. McBryde, interviewing other unit secretaries,
and observing a unit secretary perform the job, Zelenka concluded
that Brown could not perform the essential job functions. Zelenka
also considered whether Brown could perform her job with a
motorized scooter, but concluded that the scooter was not a viable
3
solution because it would not fit in all areas pertinent to the
job.
McLeod’s leave of absence policy provides that employees
who remain on leave for twelve months without returning to work are
subject to termination. Brown’s leave reached twelve months on May
26, 2001. However, McLeod extended Brown’s leave so that she could
look for another position at McLeod where her restrictions could be
accommodated. McLeod asserts that it made several attempts to
contact Brown by phone about other job opportunities at McLeod that
might meet her restrictions, but that Brown never responded. Brown
does not deny this assertion. McLeod terminated Brown’s employment
on September 1, 2001.
Brown sued McLeod, alleging discrimination on the basis
of race, in violation of Title VII, 42 U.S.C. § 2000e et seq., and
42 U.S.C. § 1981. On April 29, 2005, upon the recommendation of
the magistrate judge, the district judge entered summary judgment
for McLeod. Brown appeals.
II.
Brown argues that the district court erred in using the
Title VII burden shifting test, see McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973), because Desert Palace, Inc. v. Costa,
539 U.S. 90 (2003), requires mixed-motive analysis, see Price
Waterhouse v. Hopkins, 490 U.S. 228 (1989), in all Title VII cases
4
at summary judgment. We recently rejected this argument in Diamond
v. Colonial Life & Accident Insurance Co., 416 F.3d 310, 317 (4th
Cir. 2005). Regardless of whether Brown alleges that race was a
motivating factor or the sole reason for McLeod’s actions, McLeod
is entitled to summary judgment because Brown has failed to show
that there is a genuine issue of material fact as to whether McLeod
intentionally discriminated against her on the basis of race. See
id. at 319.
Brown argues that the district court erred in concluding
that she had failed to establish a genuine issue of material fact
on the fourth element of her prima facie case for race
discrimination: that other similarly situated employees who are
not members of the protected class were retained. See Bryant v.
Bell Atlantic Md., Inc., 288 F.3d 124, 133 (4th Cir. 2002).
Specifically, Brown alleges that the court erred in finding no
genuine issue of material fact as to whether Debra Powell, a white
employee, was in a situation similar to Brown’s. Although both
employees took leaves of absence, they are not similarly situated
because Powell was on FMLA leave while Brown was not. Furthermore,
Powell was released to return to work with minor restrictions after
less than one month and returned to work without restriction after
four months. Brown, however, was released to work after three
months, but only with significant restrictions. At no point was
Brown released to work without restriction. We therefore conclude
5
that the district court did not err in determining that there is no
genuine issue of material fact as to whether Powell and Brown were
similarly situated. Because Brown cannot establish a prima facie
case of discrimination, McLeod is entitled to summary judgment.
III.
For the foregoing reasons, we affirm the judgment of the
district court. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional process.
AFFIRMED
6