UNPUBLISHED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.
On Remand from the Supreme Court of the United States.
(S. Ct. No. 05-10032)
Submitted: February 28, 2007 Decided: March 15, 2007
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.
Vacated and remanded by unpublished per curiam opinion.
Vester Kay Scurlock-Ferguson, Appellant Pro Se. Joel M. Craig,
Erin M. Locklear, KENNON, CRAVER, BELO, CRAIG & MCKEE, PLLC,
Durham, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Vester Kay Scurlock-Ferguson sued her former employer
alleging, among other things, employment discrimination in
violation of Title VII of the Civil Rights Act of 1964. The
district court, adopting the magistrate judge’s recommendation,
denied relief. In particular, the district court found that
Scurlock-Ferguson’s claim that she was transferred in retaliation
for filing an Equal Employment Opportunity Commission charge failed
because the transfer position involved the same pay and benefits
and thus she had suffered no adverse employment action. We
affirmed on appeal concluding “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.”
Scurlock-Ferguson v. City of Durham, 154 F. App’x 390, 394 (4th
Cir. 2005) (unpublished). We relied on James v. Booz-Allen &
Hamilton, Inc., 368 F.3d 371, 375-76 (4th Cir. 2004), for this
finding. Id. The James case, in turn, relied on the reasoning of
our earlier opinion in Von Gunten v. Maryland, 243 F.3d 858 (4th
Cir. 2001).
Scurlock-Ferguson filed a petition for writ of certiorari
with the Supreme Court, which granted the petition, vacated our
opinion, and remanded for further consideration in light of
Burlington N. & S.R.R. Co. v. White, 548 U.S. __, 126 S. Ct. 2405
(2006). See Scurlock-Ferguson v. City of Durham, 126 S. Ct. 2985
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(U.S. June 30, 2006) (No. 05-10032). The Burlington opinion
rejected “the standards applied in the Courts of Appeals that have
. . . limited actionable retaliation to so-called ‘ultimate
employment decisions.’” 126 S. Ct. at 2414. Rather, the Court
held a plaintiff could show actionable retaliation if she showed
“that a reasonable employee would have found the challenged action
materially adverse, which in this context means it well might have
dissuaded a reasonable worker from making or supporting a charge of
discrimination.” Id. (internal quotation and citation omitted).
The Burlington opinion specifically rejected our approach in Von
Gunten. Id. at 2410-11.
Accordingly, we vacate and remand this matter to the
district court in light of the Supreme Court’s opinion in
Burlington.* We decline to address any other issues on appeal, as
the Supreme Court’s remand only addresses the Burlington opinion,
which in the facts of the instant case is limited to the question
of whether Scurlock-Ferguson’s transfer to the Budget Department
could be considered an actionable adverse employment action.
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.
VACATED AND REMANDED
*
We offer no criticism of the district court which followed
then-current circuit precedent in denying the retaliation claim.
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