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Arthur v. Town of Blackstone, 04-1564 (2004)

Court: Court of Appeals for the Fourth Circuit Number: 04-1564 Visitors: 50
Filed: Oct. 14, 2004
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 04-1564 LISA ARTHUR, Plaintiff - Appellant, versus TOWN OF BLACKSTONE, VIRGINIA, Defendant - Appellee, and CLYDE ROTHGEB; THE BLACKSTONE POLICE DEPARTMENT, Defendants. No. 04-1588 LISA ARTHUR, Plaintiff - Appellee, versus TOWN OF BLACKSTONE, VIRGINIA, Defendant - Appellant, and CLYDE ROTHGEB; THE BLACKSTONE POLICE DEPARTMENT, Defendants. Appeals from the United States District Court for the Eastern District of Virginia, at Ri
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                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-1564



LISA ARTHUR,

                                              Plaintiff - Appellant,

          versus


TOWN OF BLACKSTONE, VIRGINIA,

                                               Defendant - Appellee,

          and

CLYDE   ROTHGEB;    THE    BLACKSTONE     POLICE
DEPARTMENT,

                                                         Defendants.



                            No. 04-1588



LISA ARTHUR,

                                               Plaintiff - Appellee,

          versus


TOWN OF BLACKSTONE, VIRGINIA,

                                              Defendant - Appellant,

          and
CLYDE   ROTHGEB;    THE   BLACKSTONE      POLICE
DEPARTMENT,

                                                          Defendants.



Appeals from the United States District Court for the Eastern
District of Virginia, at Richmond.  Robert E. Payne, District
Judge. (CA-03-670-3)


Submitted:   September 29, 2004           Decided:   October 14, 2004


Before WILLIAMS, MICHAEL, and TRAXLER, Circuit Judges.


No. 04-1564 affirmed; No. 04-1588 dismissed by unpublished per
curiam opinion.


William G. Shields, James A. Eichner, THORSEN & SCHER, L.L.P.,
Richmond, Virginia, for Appellant/Cross-appellee Arthur. Robert A.
Dybing, THOMPSON & McMULLAN, P.C., Richmond, Virginia, for
Appellee/Cross-appellant Town of Blackstone.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




                                  - 2 -
PER CURIAM:

               In Appeal No. 04-1564, Lisa Arthur appeals from the

district court’s order granting summary judgment in favor of the

Town     of    Blackstone,      Virginia       (“Town”),   and     Clyde    Rothgeb

(“Rothgeb”) in this employment discrimination action.                        Arthur

contends that the district court erred (1) in finding that her

administrative charge was untimely as to comments made by Rothgeb

in the Fall of 2000 that she alleged established a hostile work

environment and (2) in rejecting her retaliation claim on the

ground that she did not engage in a protected activity.                    In Appeal

No. 04-1588, the Town cross appeals and sets forth an additional

ground on which the district court could have granted summary

judgment. We affirm the judgment of the district court and dismiss

the cross appeal.

               The district court referred this case to a magistrate

judge    pursuant     to   28   U.S.C.     §   636(b)(1)(B)      (2000),    and   the

magistrate judge recommended that relief be denied.                    The timely

filing        of   specific     objections       to   a    magistrate       judge’s

recommendation is necessary to preserve appellate review of the

substance of that recommendation. See Wells v. Shriners Hosp., 
109 F.3d 198
, 201 (4th Cir. 1997); Wright v. Collins, 
766 F.2d 841
,

845-46 (4th Cir. 1985); see also Thomas v. Arn, 
474 U.S. 140
(1985).       Arthur has waived appellate review of the timeliness of




                                      - 3 -
the hostile work environment claim raised on appeal by failing to

file objections to the magistrate judge’s recommendation.

           Arthur also challenges the district court’s conclusion

that she failed to forecast evidence of a prima facie case of

retaliation. We note that counsel mentions the ground on which the

district   court   relied—-that   Arthur’s   complaint   about   a   rumor

Rothgeb allegedly spread about Arthur did not constitute protected

activity—-but does not put forth any argument that the district

court erred with respect thereto.         See Fed. R. App. P. 28(a)(9)

(“[T]he argument . . . must contain . . . appellant’s contentions

and the reasons for them, with citations to the authorities and

parts of the record on which the appellant relies.”). And although

Arthur does make such an argument in her reply brief, “‘an issue

first argued in a reply brief is not properly before a court of

appeals.’”    United States v. Lewis, 
235 F.3d 215
, 218 n.3 (4th Cir.

2000) (quoting Cavallo v. Star Enter., 
100 F.3d 1150
, 1152 n.2 (4th

Cir. 1996)).    We therefore find that this issue is not properly

before us.*    See 
id. Accordingly, we affirm
the judgment of the

district court.



     *
      Moreover, even if the claim were not abandoned, Arthur’s
general objection to the magistrate judge’s recommendation is
insufficient to preserve the issue for appellate review.        See
Page v. Lee, 
337 F.3d 411
, 416 n.3 (4th Cir. 2003) (“[T]he failure
to raise an objection ‘sufficiently specific to focus the district
court’s attention on the factual and legal issues that are truly in
dispute’ waives any appellate review.”) (internal quotation marks
and citation omitted), cert. denied, 
124 S. Ct. 1115
(2004).

                                  - 4 -
          Turning to the Town’s cross appeal, the Town correctly

recognizes that “we need not reach the arguments raised by the

Town[] in [its] cross-appeal” where the order granting summary

judgment is affirmed.   APAC Carolina, Inc. v. Town of Allendale,

S.C., 
41 F.3d 157
, 160 n.2, 167 (4th Cir. 1994).     We therefore

dismiss the cross appeal in No. 04-1588.   See Pension Trust Fund

for Operating Eng’rs v. Fed. Ins. Co., 
307 F.3d 944
, 947 n.1 (9th

Cir. 2002) (dismissing cross appeal by party not aggrieved by

district court judgment).

          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.



                                             No. 04-1564 AFFIRMED
                                            No. 04-1588 DISMISSED




                              - 5 -

Source:  CourtListener

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