Lyle v. County of Fairfax VA

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-1134
MIREYA LYLE; JESSICA CUBAS,
Plaintiffs - Appellants,
versus
COUNTY OF FAIRFAX VIRGINIA,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, District
Judge. (CA-04-519)
Argued: January 31, 2006 Decided: March 10, 2006
Before GREGORY, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Nils George Peterson, Jr., Arlington, Virginia, for
Appellants. Karen Lee Gibbons, Assistant County Attorney, OFFICE
OF THE COUNTY ATTORNEY, Fairfax, Virginia, for Appellee. ON BRIEF:
David P. Bobzien, County Attorney, Peter D. Andreoli, Jr., Deputy
County Attorney, Fairfax, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Appellants Mireya Soledad Lyle and Jessica Cubas (collectively
“the plaintiffs”) brought this action against their employer, the
County of Fairfax, Virginia (“Fairfax County”), alleging sex and
national origin discrimination, retaliation, and hostile work
environment in violation of Title VII of the Civil Rights Act of
1964, 42 U.S.C. §§ 2000e et seq. In addition, Cubas brought a
claim against Fairfax County for failure to pay proper overtime in
violation of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201et seq. Lyle and Cubas now appeal the district court’s grant of
summary judgment to Fairfax County on their Title VII and FLSA
claims. For the reasons set forth below, we affirm.
I.
We state the facts in the light most favorable to the
plaintiffs. Cubas and Lyle, both Hispanic-American females,
presently work as civilian employees for Fairfax County. Plaintiff
Cubas serves as a Probation Counselor II (“PCII”) in the Victim
Services Section (“Victim Services”) of the Fairfax Police
Department, a position that she has held since her hiring in 1998.
Plaintiff Lyle joined Victim Services in 2000 as a PCII and worked
with Cubas in that capacity until 2003. While Cubas and Lyle both
worked for Victim Services, they were under the supervision of
Carroll Ann Ellis. Ellis, an African-American female, recommended
2
the plaintiffs for hire in 1998 and 2000, respectively. Ellis
reported directly to Fairfax Police Captain David Sommers, a white
male.
A.
In October 2002, while Cubas and Lyle were working together at
Victim Services, they were involved in a traffic accident in a
county vehicle. Cubas, who was driving, struck a concrete planter
barrier, causing damage to the front passenger side of the vehicle.
At the time of the accident, plaintiff Lyle was sitting in the
front passenger seat. After returning to Police headquarters,
Cubas reported the accident (her third in a county vehicle) to
Sommers. Instead of relating that she had hit the concrete planter
barrier while parking, Cubas told Sommers that the damage had been
caused by a hit-and-run driver. J.A. 818. At Sommers’s urging,
Cubas reiterated this version of events in an official accident
report.
Subsequently, Fairfax County Police Lieutenant Richard Bearden
conducted an investigation of the accident and concluded that Cubas
had struck the planter barrier while parking. J.A. 817-23; 906-07.
Accordingly, Bearden found Cubas to be in violation of several of
the Department’s regulations, including failure to make truthful
statements during the course of an investigation. Bearden also
concluded that Lyle had been untruthful during the course of his
3
investigation. After an administrative hearing in November 2002,
Sommers sustained Bearden’s findings and recommended both Cubas’s
and Lyle’s termination. Subsequently, the plaintiffs filed
grievances with Fairfax County, alleging that Sommers and Ellis had
discriminated against them. J.A. 828-842; 1492-98; 1552-53.
In early 2003, then Fairfax Police Colonel Thomas Manger
initiated an investigation of the plaintiffs’ discrimination
complaints.1 Ultimately, in March 2003, Colonel Manger concluded
that their allegations of gender and national origin discrimination
were unfounded. Manger concluded in pertinent part as follows:
The complaints made by Mrs. Cubas and Ms. Lyle were an
attempt to save their own jobs and did not accurately
represent the conditions that exist in the Victim
Services Section. However, I do believe that there is a
personality conflict between Mrs. Ellis and Mrs. Cubas,
which both readily admitt [sic]. The cause of this
conflict is not known, nor is it relevant. However, I do
not believe that this conflict affected Mrs. Ellis’
ability to effectively supervise Mrs. Cubas. My
investigation has revealed that Mrs. Cubas and Ms. Lyle
were not unlawfully discriminated against while employed
in the Victim Services Section.
J.A. 936. The plaintiffs contend that these findings are suspect,
because the investigator had refused to consider a 1998
departmental investigation regarding Ellis’s contentious
relationship with a co-worker.2 The investigator testified at his
1
Manger is now Chief of Police.
2
In October 1997, the Department investigated Victim Services
employee Cornelia Harrington’s allegations against Ellis regarding
her management style. The Department concluded that the problems
4
deposition that he did not consider the 1998 investigation because
he wanted to remain impartial in considering Cubas and Lyle’s
unrelated discrimination charges. J.A. 1159.
At the same time Colonel Manger was investigating the
plaintiffs’ charges of discrimination, Deputy Police Chief David
Rohrer conducted an independent review of the accident
investigation findings and Sommers’s disciplinary sanctions against
Cubas and Lyle. As to Lyle, Rohrer concluded that the lack of
truthfulness finding was “Not Sustained.” J.A. 856. Deputy Chief
Rohrer emphasized that although he ultimately reached a different
conclusion than Sommers had, he found that Sommers’s conclusions
regarding Lyle’s truthfulness were “reasonable” given Lyle’s
initial “vague” and “incomplete” statements regarding her
recollection of the accident. J.A. 857. Accordingly, Manger
concluded that Lyle would not be reprimanded or sanctioned for her
involvement. As to Cubas, Rohrer sustained Sommers’s finding that
Cubas had violated regulations pertaining to the safe operation of
county vehicles, but concluded that the lack of truthfulness
allegation was “Not Sustained.” J.A. 849-62. Pursuant to
between Ellis and Harrington were the result of personality
conflicts. Thereafter, Harrington was transferred to the Animal
Control Division. In September 1998, Harrington complained that
Ellis had made derogatory and demeaning comments about her sexual
preferences in violation of Department regulations. After
conducting a second and more extensive investigation and
substantiating Harrington’s charges, the Department suspended Ellis
for twenty-four hours and issued her a written reprimand for
unbecoming conduct.
5
departmental policy, Rohrer issued Cubas a written reprimand for
her third accident in a county vehicle. No other disciplinary
action was taken.
B.
In April 2003, shortly after Manger and Rohrer had completed
their investigations, the Fairfax County Executive implemented a
County-wide reduction-in-force plan (“RIF”) in accordance with the
fiscal year 2004 budget. This RIF led to the elimination of thirty
occupied merit positions throughout the County, including Lyle’s
position at Victim Services. The facts pertaining to the RIF are
outlined below.
In July 2002, several months prior to the accident and the
lodging of discrimination complaints, Fairfax County’s Director of
Management and Budget mandated that each County agency identify
workforce reductions of five percent as part of its fiscal year
2004 budget requests.3 Accordingly, in September 2002, the Fairfax
Police Department submitted its anticipated fiscal year 2004
budget, which identified sixty-nine positions that could be
eliminated. Of these sixty-nine positions, twenty were occupied,
including one PCII position at Victim Services. The remaining
3
The fiscal year 2004 budget was scheduled to be adopted in
the spring of 2003.
6
forty-nine positions identified for possible elimination were
vacant.
Subsequently, in April 2003, the Fairfax County Executive
implemented the County-wide RIF in accordance with the recently-
approved fiscal year 2004 budget. The final version of the RIF
called for the elimination of thirty occupied merit positions in
various County agencies. The County’s Department of Human
Resources (“HR”) implemented the RIF according to County
regulations. Specifically, HR ranked employees in each of the
affected agencies in the order of seniority. J.A. 699-701. HR
determined that it would first eliminate the positions of the least
senior employees in the affected divisions.
In May 2003, the County’s Director of HR informed Lyle that
“[b]ased on [her] agency, class, and seniority” Fairfax County was
eliminating her position with the Victim Services. J.A. 725.
However, HR offered Lyle a lateral position as a Social Worker II
in the Department of Systems Management for Human Services
(“Systems Management”). HR had determined that this lateral
position was commensurate with Lyle’s educational background and
previous work experience. Lyle accepted the Social Worker II
position with Systems Management in June 2003. J.A. 745. As a
result of this lateral transfer, Lyle maintained her previous pay
grade of S-22 and later received a pay bonus for her performance in
2003. Cubas also received a pay bonus for 2003.
7
C.
Subsequently, the plaintiffs filed complaints with the Equal
Employment Opportunity Commission (“EEOC”) alleging national origin
and gender discrimination. The EEOC denied their complaints, and
issued the plaintiffs right-to-sue letters. Thereafter, in May
2004, the plaintiffs filed a four-count complaint in the United
States District Court for the Eastern District of Virginia,
alleging discrimination on the basis of national origin;
discrimination on the basis of sex; retaliation; and failure to pay
overtime in violation of the FLSA. J.A. 11-15. Concluding that
the plaintiffs had failed to produce evidence that the defendant
had taken an adverse employment action against them, the district
court granted summary judgment to the defendant on Counts One, Two,
and Three. The district court also granted the defendant summary
judgment on the overtime claim, finding that Cubas had failed to
produce any evidence of the defendant’s failure to compensate her
for earned overtime.
II.
The plaintiffs raise three issues on appeal. First, Cubas and
Lyle assert that the district court erred in granting summary
judgment to Fairfax County on their sex and national origin
discrimination claims. Second, the plaintiffs contend that the
court erred in granting summary judgment on their retaliation
8
claim. Third, plaintiff Cubas asserts that the district court
erred in granting summary judgment to the defendant on her overtime
claim. We address each of these assignments of error in turn.
A.
The district court appropriately granted summary judgment to
the defendant on the plaintiffs’ sex and national origin
discrimination claims. This court reviews de novo an award of
summary judgment, viewing the facts and inferences drawn therefrom
in the light most favorable to the non-moving party. See Seabulk
Offshore, Ltd. v. Am. Home Assurance Co., 377 F.3d 408, 418 (4th
Cir. 2004). Ultimately, summary judgment is appropriate “if the
pleadings, depositions, answers to interrogatories, and admissions
on file, together with affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c);
see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Title VII makes it “an unlawful employment practice for an
employer . . . to discharge . . . or otherwise to discriminate
against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national origin.” 42
U.S.C. § 2000e-2(a)(1). Title VII also makes it unlawful for an
employer “to limit, segregate, or classify his employees or
9
applicants for employment in any way which would deprive or tend to
deprive any individual of employment opportunities, or otherwise
adversely affect his status as an employee, because of such
individual’s race, color, religion, sex, or national origin.” 42
U.S.C. § 2000e-2(a)(2).
A plaintiff may establish a claim for sex or national origin
discrimination via two avenues of proof. Hill v. Lockheed Martin
Logistics Mgmt., Inc., 354 F.3d 277, 284-85 (4th Cir. 2004) (en
banc). “First a plaintiff may establish a claim of discrimination
by demonstrating through direct or circumstantial evidence that sex
. . . [or national origin] discrimination motivated the employer’s
adverse employment decision.” Id. at 284. The plaintiff “need not
demonstrate that the prohibited characteristic was the sole
motivating factor to prevail, so long as it was a motivating
factor.” Id. More commonly, a plaintiff will attempt to establish
a discrimination claim by way of the burden-shifting framework
provided by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Under McDonnell Douglas, the plaintiff
attempts to demonstrate, by way of circumstantial evidence, that
the employer’s proffered reason for the challenged employment
decision is pretext for discrimination.
10
The plaintiffs asserted at oral argument that direct evidence
supports their claims of sex and national origin discrimination.4
In the alternative, the plaintiffs argue that they can prove
discrimination through circumstantial evidence using the McDonnell
Douglas test. However, regardless of the method the plaintiffs
employ to prove discrimination under Title VII, they must also
prove “the existence of some adverse employment action[.]” James
v. Booz-Allen & Hamilton, Inc., 368 F.3d 371, 375 (4th Cir. 2004)
(internal citation omitted). Accordingly, before we consider
whether the plaintiffs have established a prima facie case of
discrimination under McDonnell Douglas, we address the more
preliminary question of whether they suffered an adverse employment
action. We conclude that they did not.
“An adverse employment action is a discriminatory act which
adversely affects the terms, conditions, or benefits of the
plaintiff’s employment.” James, 368 F.3d at 376 (internal
quotation omitted). It is well-settled that unlawfully motivated
ultimate employment decisions--hiring, discharging, refusing to
promote, etc.-- constitute adverse employment actions, because they
have a direct impact on the terms, conditions, and benefits of
employment. However, discriminatory conduct can sometimes
4
Because there is no direct evidence in the record that the
plaintiffs’ supervisors made employment decisions because they were
motivated--solely, or in part--by gender or racial animus, this
contention is dubious.
11
constitute an adverse employment action, even where the plaintiff
is not affected by an ultimate employment decision. Von Gunten v.
Maryland, 243 F.3d 858, 865 (4th Cir. 2001). For discriminatory
conduct that falls short of an ultimate employment decision to
qualify as such, that conduct must detrimentally impact the
material terms of the plaintiff’s present employment or her
prospect for advancement. See James, 368 F.3d at 375.
It must also be remembered that the “terms, conditions, or
benefits of a person’s employment do not typically, if ever,
include general immunity from the application of basic employment
policies or exemption from [an employer’s] disciplinary
procedures.” Von Gunten, 243 F.3d at 869. Further, an employer’s
act of transferring an employee to a lateral position or assigning
her less appealing work does not constitute an adverse employment
action. See James, 368 F.3d at 376-77. Indeed, “[a]bsent any
decrease in compensation, job title, level of responsibility, or
opportunity for promotion, reassignment to a new position
commensurate with one’s salary level does not constitute an adverse
employment action even if the new job does cause some modest stress
not present in the old position.” Id. at 376.
In this case, there is no allegation of an ultimate employment
decision. The plaintiffs, however, allege a litany of adverse
changes to the terms and conditions of their employment, which they
contend resulted from the defendant’s discriminatory animus.
12
First, Cubas and Lyle contend that Ellis assigned them heavier
caseloads than similarly situated PCII employees in Victim
Services. Second, Cubas asserts that Ellis denied her certain
training opportunities that she offered to non-Hispanic employees.
Third, Lyle points to the elimination of her PCII position and
subsequent transfer to another division. Fourth, the plaintiffs
contend that the defendant prohibited them from working overtime,
while allowing three of the ten employees in their section to work
overtime. Finally, the plaintiffs assert that the defendants’
investigation of the car accident involving the plaintiffs was
conducted in a discriminatory manner.
The above allegations do not rise to the level of adverse
employment actions under our recent decision in James. In that
case, the plaintiff, an African-American electrical engineer,
brought a discrimination suit against his employer after the
employer reassigned him to a different project. 368 F.3d at 373-
74. The year after his reassignment, James received a “highly
effective” rating on his annual evaluation, a five percent salary
increase, and a $15,000 bonus. Id. Nevertheless, the plaintiff
alleged that the reassignment was motivated by discriminatory
animus and that as a result, he had suffered several adverse
employment actions. Among other allegations not relevant here,
James asserted that the reassignment stymied his opportunity for
promotion and development because he was not able to bill as many
13
hours as he had on the previous project. Id. Further, James
alleged that his employer had prevented him from attending a
training seminar that it had allowed a similarly situated white
employee to attend. Finally, James contended that his employer
denied him the opportunity to reapply for his previous position
after his successor was reassigned. Id.In assessing whether the above allegations constituted an
adverse employment action, the court in James recognized that the
determinative question was “whether there was a change in the terms
or conditions of [James’s] employment which had a significant
detrimental effect on his opportunities for promotion or
professional development.” Id. at 376. Further, the court
concluded that only a “decrease in compensation, job title, level
of responsibility, or opportunity for promotion[]” would constitute
such a detrimental effect. Id. Turning to James’s specific
allegations, the court held that none of them constituted adverse
employment actions. Id. Central to this holding was the court’s
conclusion that even though James’s employer had reassigned him to
a more mundane project and potentially had lessened his chances for
development and promotion, “James [had] retained his position of
Senior Associate and received the same pay, benefits, and other
terms and conditions of employment.” Id. at 377. The court
concluded that “an employee’s dissatisfaction with this or that
aspect of work does not mean an employer has committed an
14
actionable adverse action. And speculation about the future
adverse consequences of a reassignment may not rise to the level of
a genuine dispute.” Id.The plaintiffs’ allegations of increased workloads and denial
of training opportunities is conjectural, because Cubas and Lyle
have put forth no evidence demonstrating that their caseloads were
heavier relative to the caseloads of their co-workers in Victim
Services. However, even if we are to assume that the plaintiffs
had heavier caseloads, this allegation does not constitute an
adverse employment action because there is simply no evidence that
the plaintiffs suffered a decrease in compensation, job title,
level of responsibility, or opportunity for promotion. James, 368
F.3d at 376-77. The plaintiffs’ contention that Ellis and Sommers
denied them the opportunity to work for overtime fails for the same
reason. Although a denial of overtime opportunities could
potentially inhibit an employee’s opportunities for promotion and
professional development and thereby affect her compensation, this
did not occur here. Even without additional overtime
opportunities, both plaintiffs have continued to progress, without
interruption, in terms of their salaries, pay grades, and
promotions.
The record also belies the plaintiffs’ allegation that the
defendant terminated Lyle from her position at Victim Services.
Indeed, the undisputed evidence indicates that as a result of a
15
County-wide RIF, the defendant, with Lyle’s authorization,
transferred her to the lateral position of Social Worker II in
Systems Management. This lateral position was commensurate with
Lyle’s education and previous experience, and, as a result of the
transfer, Lyle maintained her previous pay grade and later received
a raise. As this court made clear in James, “Absent any decrease
in compensation, job title, level of responsibility, or opportunity
for promotion, reassignment to a new position commensurate with
one’s salary level does not constitute an adverse employment action
even if the new job does cause some modest stress not present in
the old position.” Id. at 376. Accordingly, Lyle’s transfer does
not constitute an adverse employment action.
Finally, the plaintiffs allege that the defendant conducted
the accident investigation in a discriminatory manner. As this
court held in Von Gunten, the terms, conditions, or benefits of
employment do not include immunity from the application of basic,
generally applicable employment policies, including routine
investigatory and disciplinary procedures. 243 F.3d at 866. The
plaintiffs do not dispute that the Department routinely
investigates accidents involving County vehicles. Further,
although plaintiff Cubas ultimately received a written reprimand
for her involvement in the accident (it being her third in a County
vehicle), Cubas conceded that it was warranted given her poor
driving history. See J.A. 183-85. Thus, to the extent that the
16
accident investigation and subsequent reprimand were conducted
pursuant to routine practice and procedure, neither act constitutes
an adverse employment action. See id.Because the five allegations cited by the plaintiffs in
support of their sexual and national origin discrimination claims
do not rise to the level of adverse employment actions, we affirm
the district court’s grant of summary judgment to the defendant on
those claims.
B.
The plaintiffs’ retaliation claim also fails because the
plaintiffs did not suffer an adverse employment action. To
establish a prima facie case of retaliation, an employee must show
(1) that she engaged in a protected activity; (2) that her employer
took an adverse employment action against her; and (3) that a
causal connection exists between the protected activity and the
adverse employment action. Hill, 354 F.3d at 298.
We will assume that the plaintiffs engaged in the protected
activity of lodging complaints of discrimination against Ellis and
Sommers at or about the time of the accident investigation.5
Afterwards, the plaintiffs allege that the defendants retaliated
against them in a number of ways. First, the plaintiffs contend
5
The defendant disputes the fact that the plaintiffs lodged
their discrimination complaints as early as the fall of 2002.
17
that the defendants retaliated by subjecting them to an overly
vigorous accident investigation, which included invasive and
lengthy polygraph examinations. Second, Lyle contends that she
was transferred to Systems Management in retaliation for lodging
her complaint, not because of an overall RIF. Third, the
plaintiffs assert that the defendants retaliated against them by
not assigning them additional cases while the accident
investigation was ongoing. Finally, Lyle contends that Ellis gave
her an inaccurate evaluation that resulted in a “substandard
raise.”
These allegations do not rise to the level of adverse
employment actions. As explained above, the terms, conditions, or
benefits of employment do not include immunity from routine
investigatory and disciplinary procedures. See Von Gunten, 243
F.3d at 866. Accordingly, the accident investigation, which was
carried out in a routine manner, does not constitute an adverse
employment action. The Police Department routinely utilizes
polygraph examinations during internal investigations, and,
accordingly, the polygraph examinations do not constitute adverse
employment actions. Moreover, it should be noted that Lyle,
herself, complained on two occasions prior to her polygraph that
she had not been afforded the opportunity of a polygraph to clear
her name. Thus, as the defendant aptly notes, it is disingenuous
18
for her now to complain that the subsequent polygraph examination
was retaliatory.
Lyle next asserts that while the Department was still
investigating her discrimination complaint against Sommers and
Ellis, Sommers took action to prevent her from regaining her
position with Victim Services. The facts belie this contention.
As a result of the passage of the County’s fiscal year 2004 budget,
HR implemented a County-wide RIF and undertook to eliminate
numerous positions in several departments. Because Lyle was the
least senior PCII at Victim Services, HR designated her position
for elimination. However, HR offered, and Lyle accepted, a
voluntary transfer to a lateral position as a Social Worker II at
the same pay grade and level of seniority. Again, because this
lateral transfer did not affect the terms, benefits, or conditions
of her employment, it did not constitute an adverse employment
action sufficient to support a retaliation claim.
The plaintiffs next contend that Ellis did not assign them any
new cases during the pendency of the accident investigation and
that Ellis under-reported the number of cases Lyle handled in 2003.
As a result, the plaintiffs assert that they each received a
“substandard raise.” Even if Ellis did not assign them new cases
during the investigation, this action was entirely appropriate
given that the investigation might have led to the termination of
these employees for false statements regarding the accident.
19
Lyle’s contention that Ellis gave her a “bad evaluation” for a
portion of 2003, causing her to receive a pay increase that was
$400 less than it otherwise would have been, is conjectural. To
the contrary, the record indicates that Ellis gave Lyle a higher
performance rating for that part of 2003 when she still worked for
her at Victim Services than Lyle’s new supervisor at Systems
Management gave her for the remainder of 2003. J.A. 325-26; 699-
701. Based partly on Ellis’s higher rating, Lyle received a three
percent pay increase in 2004. Thus, Lyle suffered no detriment to
the terms and conditions of her employment because of Ellis’s
evaluation.
In sum, the overwhelming evidence indicates that the
plaintiffs did not suffer any decrease in compensation, job title,
level of responsibility, or opportunity for promotion as the result
of their respective caseloads or annual performance evaluations.
Accordingly, these factual allegations--even accepting them as
true--do not constitute adverse employment actions and cannot
sustain a retaliation claim under Title VII. Therefore, we affirm
the district court’s grant of summary judgment to the defendant on
the plaintiffs’s retaliation claim.
C.
Although the plaintiffs asserted “hostile work environment” as
a fourth issue in their Docketing Statement, they did not list this
20
claim as a separate issue presented on appeal in their opening
brief. Further, the plaintiffs did not identify or discuss the
relevant legal standard for a formal hostile work environment claim
or apply the facts thereto. Indeed, as the defendant points out,
the phrase “hostile work environment” does not appear anywhere in
the plaintiffs’s opening brief. Nevertheless, the plaintiffs
allege several hostile acts in their brief in support of their more
general claim of sex and national origin discrimination. First,
plaintiff Cubas asserts that on one occasion, Ellis once referred
to her as “Mexican,” when, in fact, she is Columbian. On two other
occasions, Cubas alleges that Ellis stated that Cubas’s “people are
very colorful.” Cubas also contends that Ellis made derogatory
remarks about Cubas having a baby, and treated her more harshly
after she returned from maternity leave. Plaintiff Lyle contends
that Sommers made derogatory remarks about her gender.
Specifically, Lyle contends that when she mentioned to Sommers that
she had not received the computer equipment she had requested,
Sommers responded: “I won’t be the last man to lie to you.” App.’s
Br. at 7. Finally, Cubas and Lyle contend that Ellis did not allow
them to attend departmental meetings together.
Although the plaintiffs make several factual allegations of
hostile treatment in asserting their more general sex and national
origin discrimination claims, they waived consideration of a formal
hostile work environment claim by not asserting one in their
21
opening brief. Federal Rule of Appellate Procedure 28(a)(5)
requires that an appellate brief contain “a statement of the issues
presented for review.” Further, Rule 28(a)(7) requires that a
brief contain “a statement of the facts relevant to the issues
submitted for review with appropriate references to the record.”
To the extent that the plaintiffs elected not to assert and explain
the basis for a formal hostile work environment claim in their
brief, they waived consideration of this issue on appeal.6 See
11126 Baltimore Blvd. v. Prince George’s County, 58 F.3d 988, 993
n.7 (4th Cir. 1995).
D.
Finally, plaintiff Cubas asserts a claim under the FLSA,
alleging that she worked overtime hours during her lunch breaks for
which she was never paid. The FLSA establishes a forty-hour
6
Even if we were to consider a separate hostile work
environment claim based on Ellis’s derogatory remarks and more
hostile treatment towards Cubas after her return from maternity
leave, this conduct was not “severe or pervasive enough to create
an objectively hostile or abusive work environment – an environment
that a reasonable person would find hostile or abusive[.]” Harris
v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). The same can be
said with respect to Sommers’s allegedly derogatory remark to
plaintiff Lyle. In sum, the isolated and infrequent conduct
complained of by the plaintiffs, although arguably offensive, is
more akin to the kind of rude and insensitive behavior that we have
held is not sufficiently severe or pervasive to constitute a
hostile work environment under Title VII. See, e.g., Hartsell v.
Duplex Prods., 123 F.3d 766, 773 (4th Cir. 1997) (holding that
comments about plaintiff’s appearance and remarks generally
demeaning to women were not sufficiently severe or pervasive).
22
workweek for covered employees and mandates compensation at time-
and-a-half for those weekly hours in excess of forty. 29 U.S.C. §
207(a). An employee must perform forty hours of actual work in a
seven-day period before she is entitled to overtime. Id. To
establish a claim for unpaid overtime wages under the FLSA, the
plaintiff must establish by a preponderance of the evidence (1)
that she worked overtime hours without compensation; and (2) that
the employer knew (or should have known) that she had worked
overtime but did not compensate her for it. Davis v. Food Lion,
792 F.2d 1274, 1276 (4th Cir. 1986).
Although Cubas claims that she is entitled to overtime for
working through lunch on fourteen separate occasions from 2002 to
2004, the record indicates otherwise. According to Cubas’s time
and attendance sheets, she reported and was paid for three-and-a-
half hours of overtime for November 14, 2002, the first date for
which she now claims overtime. J.A. 956. With respect to seven
other occasions, Cubas did not work a required forty-hour
workweek.7 Id. As to the remaining six occasions when Cubas
alleges to have worked overtime during her lunch break, the
evidence indicates that the plaintiff never sought prior
authorization for this work or submitted overtime vouchers after it
was completed. Thus, even if the defendant worked overtime on
7
For three of these occasions, Cubas reported several hours of
sick or annual leave, or a combination of both.
23
these occasions, the defendant is not liable under the FSLA because
it did not have knowledge that Cubas had worked overtime on those
occasions. See Davis, 792 F.2d at 1276. Accordingly, the district
court properly granted summary judgment as to the FLSA claim.
III.
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED
24