Chriselda Guerrero v. Eric Holder, Jr.

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:13-cv-00729-TSE-IDD. Copies to all parties and the district court. [999636409]. [15-1054]

Appeal: 15-1054

Doc: 21

Filed: 08/07/2015

Pg: 1 of 6

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-1054

CHRISELDA GUERRERO,
Plaintiff - Appellant,
v.
LORETTA E. LYNCH,
Defendant - Appellee.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.
T. S. Ellis, III, Senior
District Judge. (1:13-cv-00729-TSE-IDD)

Submitted:

July 23, 2015

Decided:

August 7, 2015

Before NIEMEYER and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Andrew C. Simpson, Christiansted, St. Croix, U.S. Virgin
Islands, for Appellant. Dana J. Boente, United States Attorney,
Antonia Konkoly, Assistant United States Attorney, Alexandria,
Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 15-1054

Doc: 21

Filed: 08/07/2015

Pg: 2 of 6

PER CURIAM:
Chriselda Guerrero filed a complaint in the district court
alleging several violations of Title VII of the Civil Rights Act
of

1964,

42

U.S.C.

§§ 2000e-2000e(17)

(2012),

and

the

Civil

Service Reform Act of 1978 (“CSRA”), Pub L. No. 95-454, 92 Stat.
1111 (codified as amended in scattered sections of 5 U.S.C.).
The district court ruled in favor of the United States Marshals
Service (“USMS”), and Guerrero appeals.

We affirm.

First, Guerrero argues that the district court erred in
granting the USMS’s motion to dismiss Count One of her complaint
for failure to exhaust her administrative remedies.

We review a

district court’s dismissal for failure to state a claim “de novo
and

focus

only

on

the

legal

sufficiency

of

the

complaint.”

Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008).

We

view “the complaint in the light most favorable to the nonmoving party.”

LeSueur-Richmond Slate Corp. v. Fehrer, 666 F.3d

261, 264 (4th Cir. 2012).
claim for relief.”

The complaint must state a “plausible

Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

A federal employee must begin EEO counseling “within 45
days of the date of the matter alleged to be discriminatory or,
in the case of personnel action, within 45 days of the effective
date

of

the

action.”

29

C.F.R.

§ 1614.105(a)(1)

(2010).

Guerrero does not contest the fact that she failed to initiate
counseling within 45 days of the personnel action, but argues
2

Appeal: 15-1054

Doc: 21

Filed: 08/07/2015

Pg: 3 of 6

that she had no reason to suspect the action was discriminatory
at the time.

However, the time limitation starts from when the

discriminatory

act

occurred,

not

when

it

was

discovered.

Hamilton v. 1st Source Bank, 928 F.2d 86, 87-88 (4th Cir. 1990)
(en

banc).

Moreover,

while

the

limitations

period

may

be

waived, Jakubiak v. Perry, 101 F.3d 23, 27 (4th Cir. 1996), we
find no waiver on the facts of this case.
Second, Guerrero argues that the district court erred in
dismissing Count Three of her complaint when it found that she
was on probationary status at the time of her demotion.

The

CSRA provides no relief to federal employees who are serving a
probationary period.
1571,

1573

Hardy v. Merit Sys. Prot. Bd., 13 F.3d

(Fed.

§ 7511(a)(1)(A)(i)
jurisdictional

Cir.

(2012).

findings

intertwined

with

plaintiff’s

1994);

the

claims

of

We
fact

facts

under

the

see

“review
on

any

central

a

5

U.S.C.

district

court’s

issues

to

clearly

also

are

not

merits

the

that

of

the

erroneous

standard

of

review and any legal conclusions flowing therefrom de novo.”
United States ex rel. Vuyyuru v. Jadhav, 555 F.3d 337, 348 (4th
Cir. 2009).
Here,

Guerrero’s

probationary

with the merits of her claim.
-

whether

procedural

she

was

safeguards

demoted
-

the

status

was

not

intertwined

Before it could reach the merits
in

accordance

district
3

with

court

the

first

CSRA’s
had

to

Appeal: 15-1054

Doc: 21

Filed: 08/07/2015

Pg: 4 of 6

determine whether she was on probation.

Guerrero’s SF-50 stated

that she was subject to a probationary period, the SF-50 was
dated prior to her demotion, and the vacancy announcement for
the position clearly stated that the selectee could be subject
to a probationary status.
rejecting

Guerrero’s

The district court did not err in

contention

to

the

contrary.

Thus,

the

district court correctly dismissed Guerrero’s CSRA claim.
Finally, Guerrero argues that the district court erred in
granting

summary

judgment

retaliation

concerning

allegations

she

review

de

judgment.

novo

an

claimed
a

to

the

internal
improper

district

USMS

on

affairs
travel

court’s

her

claim

of

investigation

into

reimbursements.

We

order

granting

summary

Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d

562, 565 n.1 (4th Cir. 2015).

“A district court ‘shall grant

summary judgment 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.’”
P. 56(a)).

Id. at 568 (quoting Fed. R. Civ.

In determining whether a genuine issue of material

fact exists, “we view the facts and all justifiable inferences
arising therefrom in the light most favorable to . . . the
nonmoving
omitted).

party.”

Id.

at

565

n.1

(internal

quotation

marks

However, “[c]onclusory or speculative allegations do

not suffice, nor does a mere scintilla of evidence in support of
[the nonmoving party’s] case.”

Thompson v. Potomac Elec. Power
4

Appeal: 15-1054

Doc: 21

Filed: 08/07/2015

Pg: 5 of 6

Co., 312 F.3d 645, 649 (4th Cir. 2002) (internal quotation marks
omitted).
We

apply

the

familiar

McDonnell

Douglas ∗

framework

plaintiffs who lack direct evidence of retaliation.
Univ.

of

Md.-E.

Shore,

787

F.3d

243,

250

(4th

for

Foster v.
Cir.

2015).

Guerrero must first establish a prima facie case that (1) she
engaged

in

a

protected

activity,

(2)

her

employer

took

an

adverse action, and (3) there was a causal connection between
the protected activity and the adverse action.

Id.

Once a

prima

must

show

facie

case

is

established,

the

USMS

then

legitimate, nonretaliatory reason for its action.

Id.

a

If there

is such a reason, then Guerrero has the burden to show that the
reason was a pretext for retaliation.

Id.

Guerrero’s evidence of pretext amounts to nothing more than
impermissible speculation.

Additionally, the allegations were

substantiated following an investigation.
shielded

from

discipline

activity under Title VII.

merely

by

An employee is not

engaging

in

protected

See Glover v. S.C. Law Enf’t Div.,

170 F.3d 411, 414 (4th Cir. 1999) (“Employers retain . . . the
right to discipline or terminate employees for any legitimate,
nondiscriminatory reason.”).

∗

McDonnell Douglas v. Green, 411 U.S. 792 (1973).

5

Appeal: 15-1054

Doc: 21

Filed: 08/07/2015

Pg: 6 of 6

Accordingly, we affirm the district court’s judgment.
dispense

with

contentions

are

oral

argument

adequately

because

presented

in

the
the

facts

We

and

legal

materials

before

this court and argument would not aid the decisional process.

AFFIRMED

6