UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-1940
SELMA MARIE MATHIAS FERRIS,
Plaintiff - Appellant,
v.
AAF-MCQUAY, INCORPORATED, t/a McQuay International,
Defendant – Appellee.
Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Samuel G. Wilson,
District Judge. (5:06-cv-00082-sgw)
Submitted: October 21, 2008 Decided: October 23, 2008
Before MICHAEL, TRAXLER, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Richard F. Hawkins, III, HAWKINS LAW FIRM, Richmond, Virginia,
for Appellant. Douglas M. Nabhan, Heath H. Galloway, WILLIAMS
MULLEN, P.C., Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Selma Marie Mathias Ferris appeals from the district
court's adverse grant of summary judgment, and dismissal of her
action alleging that AAF-McQuay, Inc. (“McQuay”) discriminated
and retaliated against her in violation of the Americans with
Disabilities Act, 42 U.S.C. §§ 12101-12300 (2000), when it
terminated her employment in October 2004. 1 Our review of the
record and the district court's opinion discloses that this
appeal is without merit. We find, even assuming Ferris
established a prima facie case of retaliation, that the district
court correctly determined that she failed to rebut the
legitimate, nondiscriminatory reasons McQuay proffered to
support its decision to discharge her. McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802-04 (1973); Price v. Thompson, 380
F.3d 209, 212 (4th Cir. 2004). Specifically, the undisputed
evidence established that McQuay’s business substantially slowed
and it was forced to downsize in the fall of 2004, that Ferris
was the lowest-ranking member of her department and one of
1
Ferris suffered from a severe bout of adult respiratory
distress syndrome in July 1997, over seven years prior to her
discharge. She admitted that McQuay was supportive of her
throughout her extended illness, held her position open for
almost six months until her return, and tried to accommodate her
requests for a smoke-free work environment. She contends that
her discharge was in retaliation for a complaint she made to the
corporate office contesting her move to an office that was not
smoke-free and thus detrimental to her health condition.
2
approximately forty hourly and salaried employees who were
discharged as part of the company’s downsizing efforts, 2 and that
Ferris’ job responsibilities were assumed by her supervisor and
her position was not filled for over a year following her
discharge. Moreover, the record contains ample evidence of
Ferris’ history of poor work performance, documented by the
employer and other employees. Significantly, Ferris admits that
she performed poorly for over two years prior to her discharge
and that she lacked concentration and focus in her work. The
record reflects deficiencies that began prior to Ferris’
complaint to the corporate office, and continued up to the time
McQuay terminated her. Ferris’ own, unsubstantiated assertions
as to pretext 3 are insufficient to create a genuine issue of
material fact as to pretext, or to stave off summary judgment.
See King v. Rumsfeld, 328 F.3d 145, 151 (4th Cir. 2003).
As Ferris failed to rebut the legitimate,
nondiscriminatory reasons McQuay proffered for discharging her,
2
Ferris admitted that such financially-driven layoffs were
not uncommon in the department, and that she had been concerned
at various times about the possibility that she would be laid
off due to adverse economic conditions faced by the company.
3
Her assertion that McQuay’s failure to provide her with a
formal personal improvement plan demonstrates pretext does not
create a genuine issue of material fact in opposition to the
well-documented and conceded history of Ferris’ extensive work
problems, which date back to 2002, prior to the 2003 and 2004
evaluations she claims are evidence of pretext.
3
we conclude the district court properly granted McQuay’s motion
for summary judgment. 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
4