Parsons v. Wynne ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-1876
ATHENA E. PARSONS,
Plaintiff - Appellant,
versus
MICHAEL W. WYNNE, Secretary of the Air Force,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Henry Coke Morgan, Jr.,
Senior District Judge. (4:05-cv-00036-HCM)
Submitted: February 5, 2007 Decided: March 9, 2007
Before WILLIAMS, MICHAEL, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Athena E. Parsons, Appellant Pro Se. Kent Pendleton Porter,
Assistant United States Attorney, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Athena E. Parsons appeals the district court’s order granting
summary judgment in favor of Michael W. Wynne, Secretary of the Air
Force, on Parsons’ claim of retaliation under Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e to 2000e-
17 (2000). On appeal, Parsons argues that the district court
should have granted her motion to defer a decision on Wynne’s
motion to dismiss or for summary judgment until after the Supreme
Court issued Burlington N. & Santa Fe Ry. v. White, 126 S. Ct. 2405(2006). She asserts that under the standard articulated in
Burlington, the district court erred in finding she did not allege
an adverse employment action sufficient to state a claim of
retaliation under Title VII. Finding no error, we affirm.
The district court did not err or abuse its discretion in
denying Parsons’ motion to defer; it had no way of knowing the
Supreme Court would render the Burlington decision only three weeks
after its decision on Wynne’s motion. Moreover, the district court
correctly observed it was speculative to assume the Supreme Court’s
decision would alter the prevailing law in this circuit for
evaluating a retaliation claim brought under Title VII.
An appellate court, however, applies the law as it exists at
the time of the appeal. See, e.g., Thorpe v. Housing Auth. of
Durham, 339 U.S. 268, 281 (1969). Assuming for purposes of this
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appeal that the Burlington standard applies to retaliation claims
brought by federal employees, we nevertheless affirm.
To state a prima facie claim for retaliation, “a plaintiff
must show 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.” Burlington, 126 S. Ct. at
2415 (internal quotations and citations omitted). Parsons points
to several actions by her supervisors that she claims amount to
“materially adverse” employment actions. Because she failed to
present these actions to the district court, however, we will not
consider them on appeal. See Muth v. United States, 1 F.3d 246,
250 (4th Cir. 1993). Moreover, the district court held that
Parsons did not establish a prima facie case of retaliation with
regard to three allegations because she could not prove a causal
connection between the challenged actions and her prior protected
activity, or because she did not establish she was actually
entitled to the claimed benefit. Because Parsons does not
challenge these holdings on appeal, we do not consider them. See
Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir.
1999).
With regard to the two remaining actions that Parsons properly
presented to the district court and preserved for appellate review,
we conclude that even under the Burlington standard, she is unable
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to establish a prima facie case of retaliation with respect to
either of them. Neither her May 2002 performance evaluation nor
her removal from the alternate work schedule would have “dissuaded
a reasonable worker from making or supporting a charge of
discrimination.” Burlington, 126 S. Ct. at 2415. Accordingly, we
affirm the district court’s order granting summary judgment in
favor of Wynne on Parsons’ retaliation claim. 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
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