Cottman v. Rubin ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
EARL S. COTTMAN, 
Plaintiff-Appellant,
v.
 No. 01-1545
ROBERT RUBIN, Secretary,
Department of the Treasury,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Benson E. Legg, District Judge.
(CA-98-4067-L)
Submitted: April 3, 2002
Decided: May 3, 2002
Before TRAXLER and GREGORY, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Karl W. Carter, Jr., Washington, D.C., for Appellant. Thomas M.
DiBiagio, United States Attorney, Virginia B. Evans, Assistant United
States Attorney, Baltimore, Maryland for Appellee.
2 COTTMAN v. RUBIN
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Earl Cottman, a special agent of the United States Customs Ser-
vice, appeals the district court’s granting of his employer’s motion for
summary judgment, dismissing his claims of discriminatory treatment
based upon race and reprisal in violation of Title VII of the Civil
Rights Act, 42 U.S.C.A. §§ 2000e to 2000e-17 (West 1994 & Supp.
2001). We affirm.
Cottman, an African-American, has been employed with the United
States Department of Treasury (Department) since 1975. He contends
the Department discriminated against him because of his race and in
reprisal for his prior Equal Employment Opportunity (EEO) activities.
The events leading to this lawsuit include an unacceptable perfor-
mance rating for the 1993-1994 rating period, following which Cott-
man was offered the opportunity to improve by being placed on a
Performance Improvement Plan (PIP) in accordance with Customs’
policy, which he successfully completed. Cottman also did not
receive a Commissioner’s unit citation award, whereas four case
agents, two African-Americans and two Caucasians, received the
award for their involvement in four major heroin investigations. The
record indicates, however, Cottman was not the case agent in any of
the investigations and had logged fewer hours than the recognized
agents.
Cottman was not recommended for participation in a special inves-
tigative assignment for the Office of Internal Affairs for which he vol-
unteered during the pendency of his involvement in the PIP and while
he was the subject of an ongoing Internal Affairs investigation.1 The
1
Cottman conducted a vehicle stop without any nexus to a border or
Customs related enforcement activity during which he drew his weapon;
COTTMAN v. RUBIN 3
record further evidenced his supervisor believed he was not techni-
cally competent to complete the assignment. Notably, four other
agents, including an African-American, were recommended. The
Internal Affairs investigation led to Cottman’s fourteen-day suspen-
sion without pay.2
We review an award of 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 there is no genuine issue of
material fact, given the parties’ burdens of proof at trial. Fed. R. Civ.
P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-49
(1986). In determining whether the moving party has shown that there
is no genuine issue of material fact, we assess the factual evidence
and all inferences to be drawn therefrom in the light most favorable
to the non-moving party. Id. at 255; Smith v. Virginia Commonwealth
Univ., 84 F.3d 672, 675 (4th Cir. 1996).
Title VII prohibits discrimination on the basis of race, color, reli-
gion, sex, or national origin. To establish a prima facie case of dispa-
rate treatment, Cottman must show: (1) he is a member of a protected
class; (2) he has satisfactory job performance; (3) he was subjected
to adverse employment action; and (4) similarly situated employees
outside his class received more favorable treatment. See Texas Dep’t
of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981). To prevail on
a Title VII retaliation claim, Cottman must show: (1) he engaged in
a protected activity; (2) his employer took adverse employment action
against him; and (3) a sufficient causal connection existed between
used his personally owned shotgun during the execution of a search war-
rant after having been informed previously that use of his shotgun was
not authorized; and stored his personal, unauthorized shotgun in his Gov-
ernment vehicle, fully loaded with the safety off, in violation of Customs
policy. A report of the first two incidents by an African-American deputy
prompted the Internal Affairs investigation.
2
Cottman further complains for the first time on appeal he was denied
leave to attend the Internal Law Enforcement Olympics. Because Cott-
man raises this claim for the first time on appeal and does not allege
exceptional circumstances, we decline to consider the claim. See Muth v.
United States, 1 F.3d 246, 250 (4th Cir. 1993).
4 COTTMAN v. RUBIN
the first two elements. See Hopkins v. Baltimore Gas & Elec. Co., 77
F.3d 745, 754 (4th Cir. 1996).
If Cottman establishes a prima facie case, the burden shifts to the
Department to articulate a legitimate, non-discriminatory reason for
the adverse action. See Burdine, 450 U.S. at 254. If the Department
meets this burden, Cottman must show by a preponderance of the evi-
dence that the proffered reason was pretextual, and that the adverse
action was motivated by discrimination. See Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 147-48 (2000). Although the
burden of production shifts, Cottman retains the burden of persuasion
throughout all stages. See Burns v. AAF-McQuay, Inc., 96 F.3d 728,
731 (4th Cir. 1996).
We find Cottman’s claims the Department discriminated against
him by placing him on a PIP, not nominating him for the special
investigative assignment, and not recommending him for the Com-
missioner’s award fail because the actions do not amount to redress-
able adverse employment actions, and he fails to establish a causal
connection between the Department’s actions and his prior protected
activities. See Page v. Bolger, 645 F.2d 227, 233 (4th Cir. 1981)
(focusing on whether there has been discrimination in an ultimate
employment decision such as hiring, granting leave, discharging, pro-
moting, and compensating). Moreover, Cottman failed to establish
discriminatory animus. Even if Cottman were able to establish a
prima facie case with respect to these claims, he failed to rebut the
Department’s non-discriminatory reasons for its actions. See Williams
v. Cerberonics, 871 F.2d 452, 456 (4th Cir. 1989) (concluding a
plaintiff’s own assertions of discrimination are insufficient to counter
substantial evidence of legitimate non-discriminatory reasons for
adverse employment action). Likewise, assuming without deciding
Cottman established a prima facie case of discrimination based on
race and reprisal with respect to his suspension, we find he failed to
rebut the Department’s legitimate, non-discriminatory reasons for its
actions. Id. Therefore, we conclude the district court did not err in
granting summary judgment in favor of the Department, dismissing
Cottman’s complaint.
Accordingly, we affirm. We dispense with oral argument because
the facts and legal contentions are adequately presented in the materi-
COTTMAN v. RUBIN 5
als before the court and argument would not aid the decisional pro-
cess.
AFFIRMED