Kaszynski v. Thompson , 83 F. App'x 526 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
CADEL KASZYNSKI, 
Plaintiff-Appellant,
v.
TOMMY G. THOMPSON, Secretary of  No. 03-1419
the Department of Health and
Human Services,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Peter J. Messitte, District Judge.
(CA-02-1602-PJM)
Submitted: November 26, 2003
Decided: December 19, 2003
Before NIEMEYER and WILLIAMS, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Nicholas D. Dale, Bethesda, Maryland, for Appellant. Thomas M.
DiBiagio, United States Attorney, Tarra DeShields-Minnis, Assistant
United States Attorney, Baltimore, Maryland, for Appellee.
2 KASZYNSKI v. THOMPSON
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Cadel Kaszynski appeals the district court’s order granting sum-
mary judgment in favor of the Defendant on her complaint filed pur-
suant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e
to 2000e-17 (2000) alleging hostile work environment based on gen-
der and retaliatory discrimination. Finding no reversible error, we
affirm.
We review a district court’s order granting summary judgment de
novo. Higgins v. E.I. DuPont de Nemours & Co., 863 F.2d 1162,
1167 (4th Cir. 1988). Summary judgment is appropriate when no gen-
uine issue of material fact exists and the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). The evidence is viewed in the
light most favorable to the non-moving party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). Summary judgment will be
granted unless a reasonable jury could return a verdict for the non-
moving party on the evidence presented. Anderson, 477 U.S. at 247-
48.
Kaszynski argues that the district court erred by granting summary
judgment in favor of the Defendant on her hostile work environment
claim. For the reasons that follow, we find that the district court did
not err. Because Kaszynski offers no direct evidence of discrimina-
tion, her claim is analyzed using the burden-shifting framework
adopted by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973). Under the McDonnell Douglas standard,
the plaintiff bears the initial burden of establishing a prima facie case.
See Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253
(1981). Where a plaintiff makes a showing sufficient to support a
prima facie case, the burden shifts to the defendant to articulate a
legitimate, nondiscriminatory reason for the employment action.
KASZYNSKI v. THOMPSON 3
McDonnell Douglas, 411 U.S. at 802. If the employer produces a
legitimate reason for the action, the burden once again shifts to the
plaintiff to show that the employer’s rationale is just a pretext for dis-
crimination. Id. at 804. The plaintiff has the ultimate burden of dem-
onstrating that the employer’s action was discriminatory. St. Mary’s
Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993); Taylor v. Virginia
Union Univ., 193 F.3d 219, 230 (4th Cir. 1999).
To state a hostile work environment claim based on gender under
the McDonnell Douglas framework, "a female plaintiff must prove
that the offending conduct (1) was unwelcome, (2) was based on her
sex, (3) was sufficiently severe or pervasive to alter the conditions of
her employment and create an abusive work environment, and (4) was
imputable to her employer." Ocheltree v. Scollon Prods., Inc., 335
F.3d 325, 331 (4th Cir. 2003) (en banc). Kaszynski fails to make a
prima facie case because she cannot demonstrate that the offending
conduct was based on her sex or that it was sufficiently severe or per-
vasive. Moreover, even assuming that she can make a prima facie
case, she cannot show that the Defendant’s proffered reason for the
employment action was merely pretext for discrimination. Thus, the
district court did not err by granting summary judgment in favor of
the Defendant on Kaszynski’s hostile work environment claim.
Kaszynski also argues that the district court erred by granting sum-
mary judgment in favor of the Defendant on her retaliatory discrimi-
nation claim. Again, we find that the district court did not err. In order
to state a prima facie retaliation claim, a plaintiff must prove: (1) the
employee engaged in protected activity; (2) the employer took
adverse employment action against the employee; and (3) a causal
connection between the protected activity and the adverse action.
Ross v. Communications Satellite Corp., 759 F.2d 355 (4th Cir.
1985). As with the hostile work environment claim, a burden-shifting
scheme is utilized. If a prima facie case is made, the employer may
rebut it by showing a legitimate, nondiscriminatory reason for the
adverse action. Id. at 365. If this burden is met, the plaintiff must then
show by a preponderance of the evidence that the proffered reason is
only a pretext for retaliation. Id.Kaszynski cannot demonstrate the requisite causal connection for
a prima facie retaliation claim. Moreover, even assuming that she
4 KASZYNSKI v. THOMPSON
could make a prima facie case, the Defendant proffered a legitimate,
nondiscriminatory reason for the adverse employment action that she
fails to rebut by a preponderance of the evidence. Thus, the district
court did not err by granting summary judgment in favor of the
Defendant on Kaszynski’s retaliation claim.
Lastly, Kaszynski argues that this case should be analyzed using a
"mixed motive" analysis. However, because this argument is made for
the first time on appeal, and because Kaszynski fails to show any
exceptional circumstances for failure to raise it at an earlier stage, we
decline to consider it. Muth v. United States, 1 F.3d 246, 250 (4th Cir.
1993).
For these reasons, we affirm the district court’s order granting sum-
mary judgment in favor of the Defendant on both Kaszynski’s hostile
work environment claim and retaliation claim. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.
AFFIRMED