                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-1876



ATHENA E. PARSONS,

                                              Plaintiff - Appellant,

          versus


MICHAEL W. WYNNE, Secretary of the Air Force,

                                              Defendant - Appellee.


Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Henry Coke Morgan, Jr.,
Senior District Judge. (4:05-cv-00036-HCM)


Submitted:   February 5, 2007              Decided:   March 9, 2007


Before WILLIAMS, MICHAEL, and MOTZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Athena E. Parsons, Appellant Pro Se.       Kent Pendleton Porter,
Assistant United States Attorney, Norfolk, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      Athena E. Parsons appeals the district court’s order granting

summary judgment in favor of Michael W. Wynne, Secretary of the Air

Force, on Parsons’ claim of retaliation under Title VII of the

Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e to 2000e-

17 (2000).     On appeal, Parsons argues that the district court

should have granted her motion to defer a decision on Wynne’s

motion to dismiss or for summary judgment until after the Supreme

Court issued Burlington N. & Santa Fe Ry. v. White, 126 S. Ct. 2405

(2006).    She     asserts   that    under    the    standard     articulated       in

Burlington, the district court erred in finding she did not allege

an   adverse   employment    action    sufficient         to   state   a   claim   of

retaliation under Title VII.          Finding no error, we affirm.

      The district court did not err or abuse its discretion in

denying Parsons’ motion to defer; it had no way of knowing the

Supreme Court would render the Burlington decision only three weeks

after its decision on Wynne’s motion. Moreover, the district court

correctly observed it was speculative to assume the Supreme Court’s

decision   would    alter    the    prevailing      law   in   this    circuit     for

evaluating a retaliation claim brought under Title VII.

      An appellate court, however, applies the law as it exists at

the time of the appeal.            See, e.g., Thorpe v. Housing Auth. of

Durham, 339 U.S. 268, 281 (1969).             Assuming for purposes of this




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appeal that the Burlington standard applies to retaliation claims

brought by federal employees, we nevertheless affirm.

       To state a prima facie claim for retaliation, “a plaintiff

must   show    that      a   reasonable     employee   would    have     found     the

challenged action materially adverse, which in this context means

it well might have dissuaded a reasonable worker from making or

supporting a charge of discrimination.”              Burlington, 126 S. Ct. at

2415 (internal quotations and citations omitted).                    Parsons points

to several actions by her supervisors that she claims amount to

“materially adverse” employment actions.                Because she failed to

present these actions to the district court, however, we will not

consider them on appeal.             See Muth v. United States, 1 F.3d 246,

250 (4th Cir. 1993).            Moreover, the district court held that

Parsons did not establish a prima facie case of retaliation with

regard to three allegations because she could not prove a causal

connection between the challenged actions and her prior protected

activity,     or   because     she    did   not   establish    she    was   actually

entitled    to     the   claimed     benefit.      Because     Parsons      does   not

challenge these holdings on appeal, we do not consider them.                       See

Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir.

1999).

       With regard to the two remaining actions that Parsons properly

presented to the district court and preserved for appellate review,

we conclude that even under the Burlington standard, she is unable


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to establish a prima facie case of retaliation with respect to

either of them.     Neither her May 2002 performance evaluation nor

her removal from the alternate work schedule would have “dissuaded

a   reasonable    worker   from    making   or    supporting   a   charge   of

discrimination.”     Burlington, 126 S. Ct. at 2415.        Accordingly, we

affirm the district court’s order granting summary judgment in

favor of Wynne on Parsons’ retaliation claim.              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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