Filed: Jul. 02, 2009
Latest Update: Mar. 28, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-2089 THOMAS E. PERRY, Plaintiff - Appellant, v. MARY E. PETERS, Secretary of Transportation, Defendant - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Gerald Bruce Lee, District Judge. (1:07-cv-01256-GBL-TCB) Submitted: June 11, 2009 Decided: July 2, 2009 Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judges. Affirmed by unpublished per curi
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-2089 THOMAS E. PERRY, Plaintiff - Appellant, v. MARY E. PETERS, Secretary of Transportation, Defendant - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Gerald Bruce Lee, District Judge. (1:07-cv-01256-GBL-TCB) Submitted: June 11, 2009 Decided: July 2, 2009 Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judges. Affirmed by unpublished per curia..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-2089
THOMAS E. PERRY,
Plaintiff - Appellant,
v.
MARY E. PETERS, Secretary of Transportation,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:07-cv-01256-GBL-TCB)
Submitted: June 11, 2009 Decided: July 2, 2009
Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas E. Perry, Appellant Pro Se. Yiris E. Cornwall, Leslie
Bonner McClendon, Assistant United States Attorneys, Alexandria,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Thomas E. Perry filed this action against Mary E.
Peters, the Secretary of Transportation, alleging employment
discrimination arising from his employment termination. The
district court granted the defendant’s motion for summary
judgment and denied Perry’s motion to dismiss without prejudice.
Perry appeals, arguing that the district court erred by denying
his motion to amend his complaint, by finding that he failed to
establish a prima facie case of discrimination, and by finding
that the defendant articulated a legitimate, non-discriminatory
reason for removing him from his position. We find no error and
affirm.
As an initial matter, Perry contends that during the
July 25, 2008, hearing, he made an oral motion for leave to
amend his complaint. The transcript of that hearing shows Perry
did not move for leave to amend his complaint. The only mention
of an amendment followed the parties’ arguments on whether Perry
had demonstrated he was qualified for the position of
air-traffic controller. At that time, Perry stated, “So, I—
there are some things in my complaint that still are factors but
would need to be amended.” Perry did not move to amend the
complaint nor even explain what portions of his complaint he
would like to amend. Therefore, this issue lacks merit.
2
Turning to the remainder of Perry’s argument on
appeal, this court reviews a district court’s order granting
summary judgment de novo, viewing the record in the light most
favorable to the non-moving party. Hooven-Lewis v. Caldera, 249
F.3d 259, 265 (4th Cir. 2001). Summary judgment may be granted
only when “there is no genuine issue as to any material fact”
and “the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(c). To withstand a motion for summary
judgment, the non-moving party must produce competent evidence
sufficient to reveal the existence of a genuine issue of
material fact for trial. See Fed. R. Civ. P. 56(e)(2).
To establish a prima facie case of disparate treatment
discrimination, a plaintiff must show that he is a member of a
protected class, he is qualified for the position, he suffered
an adverse employment action, and an employee not in the
protected class replaced him or was treated more favorably.
James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371, 375 (4th
Cir. 2004). If the plaintiff establishes a prima facie case of
discrimination, the burden shifts to the defendant to articulate
some legitimate, nondiscriminatory reason for the employee's
rejection. Tex. Dep’t of Cmty. Affairs v. Burdine,
450 U.S.
248, 254 (1981). Our review of the record discloses that the
district court properly concluded that Perry failed to establish
a prima facie case of discrimination because he cannot show that
3
he satisfies the medical requirements for the position of
air-traffic controller.
To prevail on his Title VII retaliation claim, Perry
was required to show that: (1) he engaged in a protected
activity; (2) an adverse action was taken against him by the
employer; and (3) there was a causal connection between the
first two elements. See Lettieri v. Equant Inc., 478 F.3d 640,
650 (4th Cir. 2007). Once a plaintiff establishes his prima
facie case, the burden shifts to the employer to put forth a
legitimate, non-discriminatory reason for the action. McDonnell
Douglas Corp. v. Green,
411 U.S. 792, 802 (1973). If this
burden is met, the plaintiff must then show that the “proffered
reasons are pretextual or his claim will fail.” Price v.
Thompson,
380 F.3d 209, 212 (4th Cir. 2004). To show pretext,
the plaintiff must show that the defendant’s reason is “unworthy
of credence” or offer other forms of circumstantial evidence
demonstrating retaliation. Id.
The defendant proffered that Perry did not meet the
medical requirements for the position. Perry argued this
justification was a mere pretext, but did not present evidence
refuting this justification. Therefore, the district court
properly granted summary judgment to the defendant on Perry’s
claim of retaliation.
4
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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