Bridget Wright v. Southwest Airlines, No. 08-2093 (4th Cir. 2009)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-2093 BRIDGET R. WRIGHT, Plaintiff - Appellant, v. SOUTHWEST AIRLINES; COLLEEN BARRETT, President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 Affirmed by unpublished per curiam opinion.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 Bertram, Unpublished opinions are not binding precedent in this circuit.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, Southwest a former Airlines Co., Customer brought Service suit against Southwest Airlines and several of its managers and executives (collectively, discharge in Southwest ), violation Medical Leave Wright alleged Southwest s Act, of 29 that asserting public U.S.C. she inclement claims policy and §§ 2601-2654 was weather the wrongful Family and (2006) ( FMLA ). for protesting terminated attendance of policy retaliation for requesting leave under the FMLA. and in 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 twelve workweeks leave during any twelve-month period because of a serious health condition that 2 makes the employee § 2612(a)(1)(D) unable (2006). to It perform is her unlawful job. 29 an employer for U.S.C. to 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 employee. affected making an employment decision affecting the An employer who violates the FMLA is liable to the employee appropriate for equitable lost compensation relief. See 29 and U.S.C. benefits and § 2617(a)(1) (2006). 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 prove three elements: facie case of retaliation, In order Wright must (1) she engaged in protected activity; (2) an adverse employment action was taken against her; and 1 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). 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 adverse employment action. Inc., 259 carries prove F.3d its by a 261, burden, (4th Wright reasons were pretextual. for the Matvia v. Bald Head Island Mgmt., 270-71 preponderance reason must of the Cir. then 2001). have evidence If an Southwest opportunity that the to proffered 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 necessary case. to engaged establish in the a protected third See id. 4 activity element of is the absolutely prima facie Our review of the record reveals that Wright failed to proffer in the district court any facts suggesting supervisors were aware of her FMLA request. that her 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 supervisors us, 2 attest the that undisputed they were affidavits unaware of of On the Wright s Wright s FMLA request, and the affidavit of the FMLA Coordinator for Southwest attests that request. that the 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. 2 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. ). 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 adequately and argument addressed would not in aid the the materials decisional process. AFFIRMED 6

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