Algernon W. Tinsley v. MICHAEL J. ASTRUE, Commissioner, Social Security Administration

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-2156
ALGERNON W. TINSLEY,
Plaintiff - Appellant,
v.
MICHAEL J. ASTRUE, Commissioner, Social Security
Administration,
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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 African-American, was employed as an
Administrative Law Judge (“ALJ”) by the Social Security
Administration, Office of Disability Adjudication and Review
(“the SSA”), in Huntington, West Virginia. In 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. Tinsley,
who was sixty-nine years old at the time, 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 in the Southern District of West Virginia
alleging employment discrimination based upon 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 Whistleblower Protection Act. The SSA moved for
summary judgment on Tinsley’s race and age discrimination
claims, which the district court granted.
The parties filed cross-motions for summary judgment
on Tinsley’s whistleblower claim. Tinsley also filed a motion
1 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. The district court granted summary judgment to the SSA
on Tinsley's whistleblower claim. The district court also
denied Tinsley’s Rule 59(e) motion, finding there was
“absolutely no reason why it should amend, vacate, or alter its
previous judgment.” (J.A. 1993.)
Tinsley 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). The Age Discrimination in Employment
Act ("ADEA") similarly forbids “an employer . . . to . . .
discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment,
because of such individual’s age.” 29 U.S.C. § 623(a)(1).
Where, as here, there is no direct evidence of
discrimination, “a plaintiff may proceed under the McDonnell
Douglas pretext framework, under which the employee, after
establishing a prima facie case of discrimination, demonstrates
that the employer’s proffered permissible reason for taking an
adverse employment action is actually a pretext for
discrimination.” 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 burden of
persuasion remains with the plaintiff at all times. 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 to the SSA on Tinsley’s race and age
discrimination claims. Tinsley has failed to demonstrate a
prima facie case of discriminatory discipline based on his
thirty-day suspension. 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 waived his right to testify about his
whistleblower affirmative defense when he asserted his Fifth
Amendment privilege at his MSPB deposition and the
administrative hearing. At the hearing, Tinsley presented no
witnesses on his behalf, and his counsel made no mention of the
whistleblower claim during closing 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 discretion in denying Tinsley’s motion to alter,
amend, or vacate the judgment as to his race and age
discrimination claims under Rule 59(e). See Holland, 214 F.3d
at 527 (providing standard of review).
IV.
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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