UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-2093
BRIDGET R. WRIGHT,
Plaintiff - Appellant,
v.
SOUTHWEST AIRLINES; COLLEEN BARRETT, President and Chief
Operating Officer; MIKE MILLER; WEDA ISMALI; ADRIENNE JONES,
Defendants - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge.
(1:06-cv-03020-CCB)
Submitted: February 25, 2009 Decided: March 23, 2009
Before TRAXLER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Bridget R. Wright, Appellant Pro Se. Connie Nora Bertram,
WINSTON & STRAWN, LLP, Washington, D.C., for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Bridget R. Wright, a former Customer Service
Supervisor for Southwest Airlines Co., brought suit against
Southwest Airlines and several of its managers and executives
(collectively, “Southwest”), asserting claims of wrongful
discharge in violation of public policy and the Family and
Medical Leave Act, 29 U.S.C. §§ 2601-2654 (2006) (“FMLA”).
Wright alleged that she was terminated for protesting
Southwest’s inclement weather attendance policy and in
retaliation for requesting leave under the FMLA. Wright appeals
the district court’s grant of Southwest’s motion for summary
judgment. We affirm.
We review de novo a district court’s order granting
summary judgment and view the facts in the light most favorable
to the nonmoving party. Providence Square Assocs., L.L.C. v.
G.D.F., Inc., 211 F.3d 846, 850 (4th Cir. 2000). Summary
judgment is appropriate when no genuine issue of material fact
exists and the moving party is entitled to judgment as a matter
of law. Fed. R. Civ. P. 56(c).
In her complaint, Wright alleges that her termination
“violated her right to avail herself of her protected medical
leave rights under the FMLA.” Under the FMLA, an employee is
entitled to a total of twelve workweeks’ leave during any
twelve-month period because of a serious health condition that
2
makes the employee unable to perform her job. 29 U.S.C.
§ 2612(a)(1)(D) (2006). It is unlawful for an employer “to
interfere with, restrain, or deny the exercise of or the attempt
to exercise, any right provided under [the FMLA].” 29 U.S.C.
§ 2615(a)(1) (2006). The FMLA also prohibits an employer from
discriminating against an employee for asserting rights under
the Act. See 29 U.S.C. § 2615(a)(2) (2006). Thus, an employer
may not consider an employee’s use of FMLA leave as a negative
factor when making an employment decision affecting the
employee. An employer who violates the FMLA is liable to the
affected employee for lost compensation and benefits and
appropriate equitable relief. See 29 U.S.C. § 2617(a)(1)
(2006).
On appeal, 1 Wright argues that the district court erred
in determining that her supervisors were unaware of her FMLA
request when they decided to terminate her employment. In order
to establish a prima facie case of retaliation, Wright must
prove three elements: (1) she “engaged in protected activity;”
(2) “an adverse employment action was taken against her;” and
1
Though Wright raised an additional claim of wrongful
discharge in violation of public policy in her complaint, she
has failed to address this issue in her informal brief on
appeal. Accordingly, this claim has been abandoned. See 4th
Cir. R. 34(b); Edwards v. City of Goldsboro, 178 F.3d 231, 241
n.6 (4th Cir. 1999).
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(3) “there was a causal link between the protected activity and
the adverse employment action.” Mackey v. Shalala, 360 F.3d
463, 469 (4th Cir. 2004). Once she establishes the elements of
a prima facie case, the burden shifts to Southwest to proffer
evidence of a legitimate, non-discriminatory reason for the
adverse employment action. Matvia v. Bald Head Island Mgmt.,
Inc., 259 F.3d 261, 270-71 (4th Cir. 2001). If Southwest
carries its burden, Wright must then have an opportunity to
prove by a preponderance of the evidence that the proffered
reasons were pretextual. Id. at 271.
It is undisputed that Wright engaged in a protected
activity and adverse employment action was taken against her —
she requested extended leave under the FMLA and her employment
was terminated. However, in order to establish a prima facie
case of retaliation, Wright must demonstrate there was a causal
connection between her FMLA request and her termination. To do
so, Wright must prove that she was terminated “because [she]
engaged in protected activity.” Dowe v. Total Action Against
Poverty in Roanoke Valley, 145 F.3d 653, 657 (4th Cir. 1998).
“Since, by definition, an employer cannot take action because of
a factor of which it is unaware, the employer’s knowledge that
the plaintiff engaged in a protected activity is absolutely
necessary to establish the third element of the prima facie
case.” See id.
4
Our review of the record reveals that Wright failed to
proffer in the district court any facts suggesting that her
supervisors were aware of her FMLA request. In her informal
brief on appeal, Wright argues that Southwest Airlines Co. was
aware of her FMLA request. Although it appears accurate that
certain airline officials were aware of Wright’s FMLA request,
she utterly fails to demonstrate that the particular supervisors
involved in her termination possessed such knowledge. On the
record before us, 2 the undisputed affidavits of Wright’s
supervisors attest that they were unaware of Wright’s FMLA
request, and the affidavit of the FMLA Coordinator for Southwest
attests that she did not inform Wright’s supervisors of the
request. As Wright failed to allege facts sufficient to prove
that the supervisors responsible for her termination had
knowledge of her FMLA request, she was unable to establish a
prima facie retaliation claim, and the district court did not
err in granting summary judgment on this issue.
2
Wright attempts to introduce evidence for the first time
on appeal purporting to support her claims. However, this court
does not consider evidence that was not before the district
court. See Phonometrics, Inc. v. Westin Hotel Co., 319 F.3d
1328, 1333 (Fed. Cir. 2003) (“We, as a court of review,
generally do not consider evidence that has not been considered
by the district court.”); Theriot v. Parish of Jefferson, 185
F.3d 477, 491 n.26 (5th Cir. 1999) (“An appellate court may not
consider new evidence furnished for the first time on appeal.”).
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Accordingly, we affirm the judgment of the district
court. We dispense with oral argument because the facts and
legal contentions are adequately addressed in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
6