Algernon Tinsley v. Michael Astrue , 501 F. App'x 295 ( 2012 )


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  •                             UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 11-2156
    ALGERNON W. TINSLEY,
    Plaintiff - Appellant,
    v.
    MICHAEL   J.    ASTRUE,    Commissioner,      Social     Security
    Administration,
    Defendant - Appellee.
    Appeal from the United States District Court for the Southern
    District of West Virginia, at Huntington.  Robert C. Chambers,
    District Judge. (3:09-cv-00600)
    Submitted:   October 12, 2012             Decided:   December 27, 2012
    Before NIEMEYER, SHEDD, and AGEE, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    Michael L. Boylan, Louisville, Kentucky, for Appellant.        R.
    Booth Goodwin II, United States Attorney, J. Christopher
    Krivonyak, Assistant United States Attorney, OFFICE OF THE
    UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Algernon W. Tinsley (“Tinsley”) appeals the district
    court’s     grant    of     summary     judgment         to    Michael     J.    Astrue,
    Commissioner of the Social Security Administration, on several
    claims arising from Tinsley’s suspension from his employment.
    For the reasons set forth below, we affirm the judgment of the
    district court.
    I.
    Tinsley,        an    African-American,           was     employed     as    an
    Administrative       Law      Judge    (“ALJ”)         by     the     Social     Security
    Administration,          Office   of   Disability        Adjudication      and     Review
    (“the   SSA”),      in    Huntington,    West         Virginia.       In   March      2008,
    Tinsley received a thirty-day suspension from his employment for
    making false entries on the SSA’s Serial Time and Attendance
    Rosters (“time sheets”) on four separate occasions.                              Tinsley,
    who   was   sixty-nine        years    old       at    the    time,    challenged       the
    suspension before the Merit Systems Protection Board (“MSPB”)
    alleging that he was treated in a disparate manner because of
    his race and age.           He also raised an affirmative defense under
    the Whistleblower Protection Act of 1989, 
    5 U.S.C. § 2302
    (b)(8)
    (“Whistleblower           Protection     Act”),         alleging       that      he     was
    retaliated against for making certain disclosures to the Office
    of the Inspector General against the SSA.
    2
    On August 26, 2008, an administrative hearing was held
    before MSPB ALJ William N. Cates (“ALJ Cates”).                  On October 21,
    2008, after considering the hearing testimony and the parties’
    arguments, 1 ALJ Cates upheld Tinsley’s suspension for good cause.
    In his decision, ALJ Cates found that Tinsley had “failed to
    establish that he was treated differently based on age or race.”
    (J.A. 267.)       ALJ Cates further found that “[t]here simply [was]
    no evidence to support Judge Tinsley’s claim of [discrimination]
    based on protections afforded by the Whistleblower Protection
    Act.”     (J.A. 268.)
    After exhausting his administrative remedies, Tinsley
    filed    a   complaint   in    the   Southern    District   of   West    Virginia
    alleging       employment     discrimination     based   upon    race    and    age
    pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C.
    § 2000e et seq. (“Title VII”) and an adverse employment action
    under    the    Whistleblower     Protection     Act.    The     SSA    moved   for
    summary      judgment    on    Tinsley’s    race   and   age     discrimination
    claims, which the district court granted.
    The parties filed cross-motions for summary judgment
    on Tinsley’s whistleblower claim.               Tinsley also filed a motion
    1
    At the hearing, the SSA called three witnesses, all of
    whose testimony was uncontested.    Tinsley called no witnesses
    and did not testify, asserting his Fifth Amendment right against
    self-incrimination.
    3
    under Federal Rule of Civil Procedure 59(e) to amend, alter, or
    vacate the final judgment on his race and age discrimination
    claims.    The district court granted summary judgment to the SSA
    on   Tinsley's    whistleblower        claim.      The    district      court   also
    denied    Tinsley’s       Rule     59(e)      motion,       finding     there    was
    “absolutely no reason why it should amend, vacate, or alter its
    previous judgment.”       (J.A. 1993.)
    Tinsley    timely       appealed,      and    we   have     jurisdiction
    under 
    28 U.S.C. § 1291
    .
    II.
    A.
    We    review    the      district      court’s     grant    of    summary
    judgment de novo, applying the same standard as the district
    court.    See Nat’l City Bank of Ind. v. Turnbaugh, 
    463 F.3d 325
    ,
    329 (4th Cir. 2006).         Summary judgment is appropriate “if the
    movant shows that there is no genuine dispute as to any material
    fact and the movant is entitled to judgment as a matter of law.”
    Fed. R. Civ. P. 56(a).
    In    reviewing       the   district    court’s     grant    of   summary
    judgment to the SSA on Tinsley’s whistleblower claim, the Court
    relies upon the standard of review set forth in 
    5 U.S.C. § 7703
    (c), which provides:
    4
    In any case filed in the United States Court of
    Appeals for the Federal Circuit, the court shall
    review the record and hold unlawful and set aside any
    agency action, findings, or conclusions found to be—
    (1) arbitrary, capricious, an abuse of discretion, or
    otherwise not in accordance with law;
    (2) obtained without procedures required by law, rule,
    or regulation having been followed; or
    (3) unsupported by substantial evidence.
    
    5 U.S.C. § 7703
    (c). 2
    The district court’s denial of Tinsley’s Rule 59(e)
    motion      is   reviewed   under   an    abuse-of-discretion   standard.
    United States v. Holland, 
    214 F.3d 523
    , 527 (4th Cir. 2000).
    B.
    Title VII makes it “an unlawful employment practice
    for an employer . . . to discriminate against any individual
    with       respect   to   his   compensation,   terms,   conditions,   or
    privileges of employment, because of such individual’s race.”
    2
    “A federal employee who asserts both discrimination in
    violation of Title VII and an ‘adverse employment action’
    asserts a ‘mixed case.’” Pueschel v. Peters, 
    577 F.3d 558
    , 563
    (4th Cir. 2009).   A plaintiff in a “mixed case” may appeal an
    MSPB decision to either the United States Court of Appeals for
    the Federal Circuit or the appropriate federal district court,
    as Tinsley did here. See 
    5 U.S.C. § 7703
    (b). In a “mixed case”
    such as this, when discrimination claims are disposed of before
    non-discrimination claims, the district court may exercise its
    discretion in retaining jurisdiction over the non-discrimination
    claims instead of transferring the claims to the Federal Circuit
    under 
    28 U.S.C. § 1631
    .    Afifi v. U.S. Dep’t of the Interior,
    
    924 F.2d 61
    , 64 (4th Cir. 1991).
    5
    42 U.S.C. § 2000e-2(a)(1).              The Age Discrimination in Employment
    Act ("ADEA") similarly forbids “an employer . . . to . . .
    discriminate      against        any    individual       with       respect      to     his
    compensation,        terms,   conditions,       or    privileges        of    employment,
    because of such individual’s age.”               
    29 U.S.C. § 623
    (a)(1).
    Where,    as    here,     there    is     no    direct         evidence    of
    discrimination,        “a    plaintiff    may    proceed      under     the     McDonnell
    Douglas      pretext    framework,       under       which    the   employee,         after
    establishing a prima facie case of discrimination, demonstrates
    that the employer’s proffered permissible reason for taking an
    adverse       employment       action      is        actually       a    pretext        for
    discrimination.”         Diamond v. Colonial Life & Accident Ins. Co.,
    
    416 F.3d 310
    , 318 (4th Cir. 2005) (internal quotation marks and
    brackets omitted); see also McDonnell Douglas Corp. v. Green,
    
    411 U.S. 792
    ,     802–04,    807    (1973).        The     ultimate       burden    of
    persuasion remains with the plaintiff at all times.                           Tex. Dep’t
    of Cmty. Affairs v. Burdine, 
    450 U.S. 248
    , 253 (1981).
    III.
    Tinsley raises three issues on appeal: (1) whether the
    district court erred in granting summary judgment to the SSA on
    his race and age discrimination claims; (2) whether the district
    court erred in granting summary judgment to the SSA and denying
    summary judgment to Tinsley on his whistleblower claim; and (3)
    6
    whether the district court abused its discretion in denying his
    Rule 59(e) motion to alter, amend, or vacate the judgment as to
    his race and age discrimination claims.
    We conclude that the district court properly granted
    summary      judgment    to    the     SSA     on        Tinsley’s      race     and    age
    discrimination     claims.        Tinsley      has       failed    to   demonstrate       a
    prima   facie    case    of   discriminatory             discipline     based     on    his
    thirty-day suspension.         See Cook v. CSX Transp. Corp., 
    988 F.2d 507
    , 511 (4th Cir. 1993) (stating elements of prima facie case
    of discriminatory discipline).                 Tinsley cannot show that any
    comparable employee was treated differently based on race.                              Nor
    can he show that anyone outside the protected age class was
    treated differently.
    Turning to Tinsley’s whistleblower claim, we conclude
    that the district court properly granted summary judgment to the
    SSA    and   denied     summary     judgment        to    Tinsley.          Tinsley     has
    presented no evidence to support his claim of discrimination
    based on protections afforded by the Whistleblower Protection
    Act.         Tinsley    waived       his     right        to     testify       about    his
    whistleblower     affirmative        defense    when       he    asserted      his     Fifth
    Amendment       privilege      at      his     MSPB            deposition       and     the
    administrative hearing.             At the hearing, Tinsley presented no
    witnesses on his behalf, and his counsel made no mention of the
    whistleblower      claim      during       closing        argument.            Given    the
    7
    evidence, the district court properly found that ALJ Cates’s
    denial of Tinsley’s whistleblower claim was not in violation of
    
    5 U.S.C. § 7703
    (c).
    Finally, we conclude that the district court did not
    abuse    its    discretion      in    denying   Tinsley’s      motion      to   alter,
    amend,     or    vacate    the       judgment   as    to     his    race    and    age
    discrimination claims under Rule 59(e).                    See Holland, 
    214 F.3d at 527
     (providing standard of review).
    IV.
    Accordingly, we affirm the judgment of the district
    court.     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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