Bridget Wright v. Southwest Airlines

Filing 920090323

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-2093

BRIDGET R. WRIGHT, Plaintiff - Appellant, v. SOUTHWEST AIRLINES; COLLEEN BARRETT, President and Chief Operating Officer; MIKE MILLER; WEDA ISMALI; ADRIENNE JONES, Defendants - Appellees.

Appeal from the United States District Court for the District of Maryland, at Baltimore. Catherine C. Blake, District Judge. (1:06-cv-03020-CCB)

Submitted:

February 25, 2009

Decided:

March 23, 2009

Before TRAXLER and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Bridget R. Wright, Appellant Pro Se. Connie Nora WINSTON & STRAWN, LLP, Washington, D.C., for Appellees.

Bertram,

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Bridget Supervisor for R. Wright, a former Co., Customer suit Service against

Southwest

Airlines

brought

Southwest Airlines and several of its managers and executives (collectively, discharge Medical Wright in "Southwest"), violation Act, 29 of asserting policy claims and of wrongful and

public

the (2006) for

Family

Leave alleged

U.S.C. she was

§§ 2601-2654 terminated attendance

("FMLA"). protesting and in

that

Southwest's

inclement

weather

policy

retaliation for requesting leave under the FMLA.

Wright appeals

the district court's grant of Southwest's motion for summary judgment. We affirm. We review de novo a district court's order granting summary judgment and view the facts in the light most favorable to the nonmoving party. G.D.F., Inc., 211 F.3d Providence Square Assocs., L.L.C. v. 846, 850 (4th Cir. 2000). Summary

judgment is appropriate when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). In her complaint, Wright alleges that her termination "violated her right to avail herself of her protected medical leave rights under the FMLA." entitled to a total of Under the FMLA, an employee is workweeks' leave during any

twelve

twelve-month period because of a serious health condition that 2

makes

the

employee

unable It

to is

perform unlawful

her for

job. an

29

U.S.C. "to

§ 2612(a)(1)(D)

(2006).

employer

interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under [the FMLA]." § 2615(a)(1) (2006). 29 U.S.C.

The FMLA also prohibits an employer from

discriminating against an employee for asserting rights under the Act. See 29 U.S.C. § 2615(a)(2) (2006). Thus, an employer

may not consider an employee's use of FMLA leave as a negative factor when making an employment decision affecting the

employee. affected

An employer who violates the FMLA is liable to the employee for lost relief. compensation See 29 and U.S.C. benefits and

appropriate (2006).

equitable

§ 2617(a)(1)

On appeal, 1 Wright argues that the district court erred in determining that her supervisors were unaware of her FMLA request when they decided to terminate her employment. to establish a prima facie case of retaliation, In order must

Wright

prove three elements:

(1) she "engaged in protected activity;"

(2) "an adverse employment action was taken against her;" and

Though Wright raised an additional claim of wrongful discharge in violation of public policy in her complaint, she has failed to address this issue in her informal brief on appeal. Accordingly, this claim has been abandoned. See 4th Cir. R. 34(b); Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir. 1999).

1

3

(3) "there was a causal link between the protected activity and the adverse employment action." 463, 469 (4th Cir. 2004). Mackey v. Shalala, 360 F.3d

Once she establishes the elements of

a prima facie case, the burden shifts to Southwest to proffer evidence of a legitimate, non-discriminatory reason for the

adverse employment action. Inc., 259 F.3d 261, 270-71 Wright of

Matvia v. Bald Head Island Mgmt., (4th must the Cir. then 2001). have an that If Southwest to

carries prove by

its a

burden,

opportunity the

preponderance

evidence

proffered

reasons were pretextual.

Id. at 271.

It is undisputed that Wright engaged in a protected activity and adverse employment action was taken against her -- she requested extended leave under the FMLA and her employment was terminated. However, in order to establish a prima facie

case of retaliation, Wright must demonstrate there was a causal connection between her FMLA request and her termination. To do

so, Wright must prove that she was terminated "because [she] engaged in protected activity." Dowe v. Total Action Against

Poverty in Roanoke Valley, 145 F.3d 653, 657 (4th Cir. 1998). "Since, by definition, an employer cannot take action because of a factor of which it is unaware, the employer's knowledge that the plaintiff to engaged establish in the a protected third activity of is absolutely prima facie

necessary case."

element

the

See id. 4

Our review of the record reveals that Wright failed to proffer in the district court any facts suggesting that her

supervisors were aware of her FMLA request.

In her informal

brief on appeal, Wright argues that Southwest Airlines Co. was aware of her FMLA request. Although it appears accurate that

certain airline officials were aware of Wright's FMLA request, she utterly fails to demonstrate that the particular supervisors involved in her termination possessed such knowledge. record before us, 2 the that undisputed they were affidavits unaware of of On the Wright's FMLA

supervisors

attest

Wright's

request, and the affidavit of the FMLA Coordinator for Southwest attests request. that the that she did not inform Wright's supervisors of the

As Wright failed to allege facts sufficient to prove supervisors responsible for her termination had

knowledge of her FMLA request, she was unable to establish a prima facie retaliation claim, and the district court did not err in granting summary judgment on this issue.

Wright attempts to introduce evidence for the first time on appeal purporting to support her claims. However, this court does not consider evidence that was not before the district court. See Phonometrics, Inc. v. Westin Hotel Co., 319 F.3d 1328, 1333 (Fed. Cir. 2003) ("We, as a court of review, generally do not consider evidence that has not been considered by the district court."); Theriot v. Parish of Jefferson, 185 F.3d 477, 491 n.26 (5th Cir. 1999) ("An appellate court may not consider new evidence furnished for the first time on appeal.").

2

5

Accordingly, we affirm the judgment of the district court. legal before We dispense with oral argument because the facts and contentions the court are and adequately argument addressed not in aid the the materials decisional

would

process. AFFIRMED

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