Algernon Tinsley v. Michael Astrue

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:09-cv-00600 Copies to all parties and the district court/agency. [999010736].. [11-2156]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-2156

ALGERNON W. TINSLEY,
Plaintiff - Appellant,
v.
MICHAEL
J.
ASTRUE,
Administration,

Commissioner,

Social

Security

Defendant - Appellee.

Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington.
Robert C. Chambers,
District Judge. (3:09-cv-00600)

Submitted:

October 12, 2012

Decided:

December 27, 2012

Before NIEMEYER, SHEDD, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Michael L. Boylan, Louisville, Kentucky, for Appellant.
R.
Booth Goodwin II, United States Attorney, J. Christopher
Krivonyak, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Algernon W. Tinsley (“Tinsley”) appeals the district
court’s

grant

of

summary

judgment

to

Michael

J.

Astrue,

Commissioner of the Social Security Administration, on several
claims arising from Tinsley’s suspension from his employment.
For the reasons set forth below, we affirm the judgment of the
district court.

I.
Tinsley,

an

Administrative

Law

Administration,

Office

(“the

SSA”),

in

African-American,

Judge
of

(“ALJ”)

by

Disability

Huntington,

West

was

employed

the

Social

Adjudication

Virginia.

In

as

an

Security

and

Review

March

2008,

Tinsley received a thirty-day suspension from his employment for
making false entries on the SSA’s Serial Time and Attendance
Rosters (“time sheets”) on four separate occasions.
who

was

sixty-nine

years

old

at

the

time,

Tinsley,

challenged

the

suspension before the Merit Systems Protection Board (“MSPB”)
alleging that he was treated in a disparate manner because of
his race and age.

He also raised an affirmative defense under

the Whistleblower Protection Act of 1989, 5 U.S.C. § 2302(b)(8)
(“Whistleblower

Protection

Act”),

alleging

that

he

was

retaliated against for making certain disclosures to the Office
of the Inspector General against the SSA.
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On August 26, 2008, an administrative hearing was held
before MSPB ALJ William N. Cates (“ALJ Cates”).

On October 21,

2008, after considering the hearing testimony and the parties’
arguments, 1 ALJ Cates upheld Tinsley’s suspension for good cause.
In his decision, ALJ Cates found that Tinsley had “failed to
establish that he was treated differently based on age or race.”
(J.A. 267.)

ALJ Cates further found that “[t]here simply [was]

no evidence to support Judge Tinsley’s claim of [discrimination]
based on protections afforded by the Whistleblower Protection
Act.”

(J.A. 268.)
After exhausting his administrative remedies, Tinsley

filed

a

complaint

alleging

in

employment

the

Southern

discrimination

District
based

of

upon

West

Virginia

race

and

age

pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e et seq. (“Title VII”) and an adverse employment action
under

the

summary

Whistleblower

judgment

on

Protection

Tinsley’s

Act.

race

and

The
age

SSA

moved

for

discrimination

claims, which the district court granted.
The parties filed cross-motions for summary judgment
on Tinsley’s whistleblower claim.

1

Tinsley also filed a motion

At the hearing, the SSA called three witnesses, all of
whose testimony was uncontested.
Tinsley called no witnesses
and did not testify, asserting his Fifth Amendment right against
self-incrimination.

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under Federal Rule of Civil Procedure 59(e) to amend, alter, or
vacate the final judgment on his race and age discrimination
claims.
on

The district court granted summary judgment to the SSA

Tinsley's

denied

whistleblower

Tinsley’s

Rule

claim.

59(e)

The

district

court

also

finding

there

was

motion,

“absolutely no reason why it should amend, vacate, or alter its
previous judgment.”
Tinsley

(J.A. 1993.)
timely

appealed,

and

we

have

jurisdiction

under 28 U.S.C. § 1291.

II.
A.
We

review

the

district

court’s

grant

of

summary

judgment de novo, applying the same standard as the district
court.

See Nat’l City Bank of Ind. v. Turnbaugh, 463 F.3d 325,

329 (4th Cir. 2006).

Summary judgment is appropriate “if the

movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a).
In

reviewing

the

district

court’s

grant

of

summary

judgment to the SSA on Tinsley’s whistleblower claim, the Court
relies upon the standard of review set forth in 5 U.S.C. §
7703(c), which provides:

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In any case filed in the United States Court of
Appeals for the Federal Circuit, the court shall
review the record and hold unlawful and set aside any
agency action, findings, or conclusions found to be—
(1) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law;
(2) obtained without procedures required by law, rule,
or regulation having been followed; or
(3) unsupported by substantial evidence.
5 U.S.C. § 7703(c). 2
The district court’s denial of Tinsley’s Rule 59(e)
motion

is

reviewed

under

an

abuse-of-discretion

standard.

United States v. Holland, 214 F.3d 523, 527 (4th Cir. 2000).

B.
Title VII makes it “an unlawful employment practice
for an employer . . . to discriminate against any individual
with

respect

to

his

compensation,

terms,

conditions,

or

privileges of employment, because of such individual’s race.”
2

“A federal employee who asserts both discrimination in
violation of Title VII and an ‘adverse employment action’
asserts a ‘mixed case.’” Pueschel v. Peters, 577 F.3d 558, 563
(4th Cir. 2009).
A plaintiff in a “mixed case” may appeal an
MSPB decision to either the United States Court of Appeals for
the Federal Circuit or the appropriate federal district court,
as Tinsley did here. See 5 U.S.C. § 7703(b). In a “mixed case”
such as this, when discrimination claims are disposed of before
non-discrimination claims, the district court may exercise its
discretion in retaining jurisdiction over the non-discrimination
claims instead of transferring the claims to the Federal Circuit
under 28 U.S.C. § 1631.
Afifi v. U.S. Dep’t of the Interior,
924 F.2d 61, 64 (4th Cir. 1991).

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42 U.S.C. § 2000e-2(a)(1).

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The Age Discrimination in Employment

Act ("ADEA") similarly forbids “an employer . . . to . . .
discriminate

against

compensation,

terms,

any

individual

conditions,

because of such individual’s age.”
Where,
discrimination,
Douglas

pretext

as
“a

here,

there

plaintiff

framework,

respect

privileges

or

with

of

to

his

employment,

29 U.S.C. § 623(a)(1).
is

no

may

proceed

under

which

direct
under
the

evidence
the

of

McDonnell

employee,

after

establishing a prima facie case of discrimination, demonstrates
that the employer’s proffered permissible reason for taking an
adverse

employment

discrimination.”

action

is

actually

a

pretext

for

Diamond v. Colonial Life & Accident Ins. Co.,

416 F.3d 310, 318 (4th Cir. 2005) (internal quotation marks and
brackets omitted); see also McDonnell Douglas Corp. v. Green,
411

U.S.

792,

802–04,

807

(1973).

The

ultimate

persuasion remains with the plaintiff at all times.

burden

of

Tex. Dep’t

of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).

III.
Tinsley raises three issues on appeal: (1) whether the
district court erred in granting summary judgment to the SSA on
his race and age discrimination claims; (2) whether the district
court erred in granting summary judgment to the SSA and denying
summary judgment to Tinsley on his whistleblower claim; and (3)
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whether the district court abused its discretion in denying his
Rule 59(e) motion to alter, amend, or vacate the judgment as to
his race and age discrimination claims.
We conclude that the district court properly granted
summary

judgment

discrimination
prima

facie

to

the

claims.

case

of

SSA

on

Tinsley

Tinsley’s

has

discriminatory

thirty-day suspension.

failed

to

discipline

race

and

age

demonstrate
based

on

a

his

See Cook v. CSX Transp. Corp., 988 F.2d

507, 511 (4th Cir. 1993) (stating elements of prima facie case
of discriminatory discipline).

Tinsley cannot show that any

comparable employee was treated differently based on race.

Nor

can he show that anyone outside the protected age class was
treated differently.
Turning to Tinsley’s whistleblower claim, we conclude
that the district court properly granted summary judgment to the
SSA

and

denied

summary

judgment

to

Tinsley.

Tinsley

has

presented no evidence to support his claim of discrimination
based on protections afforded by the Whistleblower Protection
Act.

Tinsley

whistleblower
Amendment

waived

affirmative

privilege

his

defense

at

administrative hearing.

right

his

when
MSPB

to

testify

he

asserted

deposition

about
his
and

his
Fifth
the

At the hearing, Tinsley presented no

witnesses on his behalf, and his counsel made no mention of the
whistleblower

claim

during

closing
7

argument.

Given

the

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evidence, the district court properly found that ALJ Cates’s
denial of Tinsley’s whistleblower claim was not in violation of
5 U.S.C. § 7703(c).
Finally, we conclude that the district court did not
abuse

its

amend,

discretion

or

vacate

in

the

denying
judgment

Tinsley’s
as

discrimination claims under Rule 59(e).

to

motion

his

race

to

alter,

and

age

See Holland, 214 F.3d

at 527 (providing standard of review).

IV.
Accordingly, we affirm the judgment of the district
court.
legal
before

We dispense with oral argument because the facts and
contentions
the

Court

are

adequately

and

argument

presented

would

not

in
aid

the
the

materials
decisional

process.
AFFIRMED

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