Chriselda Guerrero v. Loretta E. Lynch

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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 non-
moving party.” LeSueur-Richmond Slate Corp. v. Fehrer, 666 F.3d
261, 264 (4th Cir. 2012). The complaint must state a “plausible
claim for relief.” 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

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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. Hardy v. Merit Sys. Prot. Bd., 13 F.3d
1571, 1573 (Fed. Cir. 1994); see also 5 U.S.C.
§ 7511(a)(1)(A)(i) (2012). We “review a district court’s
jurisdictional findings of fact on any issues that are not
intertwined with the facts central to the merits of the
plaintiff’s claims under the clearly 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 status was not intertwined
with the merits of her claim. Before it could reach the merits
- whether she was demoted in accordance with the CSRA’s
procedural safeguards - the district court first had to

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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. The district court did not err in
rejecting Guerrero’s 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 to the USMS on her claim of
retaliation concerning an internal affairs investigation into
allegations she claimed improper travel reimbursements. We
review de novo a district court’s order granting summary
judgment. 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.’” Id. at 568 (quoting Fed. R. Civ.
P. 56(a)). 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 party.” Id. at 565 n.1 (internal quotation marks
omitted). 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

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Co., 312 F.3d 645, 649 (4th Cir. 2002) (internal quotation marks
omitted).
We apply the familiar McDonnell Douglas∗ framework for
plaintiffs who lack direct evidence of retaliation. Foster v.
Univ. of Md.-E. Shore, 787 F.3d 243, 250 (4th 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 facie case is established, the USMS then must show a
legitimate, nonretaliatory reason for its action. Id. 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. An employee is not
shielded from discipline merely by engaging in protected
activity under Title VII. 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).

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Accordingly, we affirm the district court’s judgment. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED

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