                                   UNPUBLISHED

                     UNITED STATES COURT OF APPEALS
                         FOR THE FOURTH CIRCUIT


                                     No. 17-2350


VERONIQUE M. NZABANDORA,

                   Plaintiff - Appellant,

             v.

RECTORS AND VISITORS OF                 THE   UNIVERSITY      OF   VIRGINIA;
COMMONWEALTH OF VIRGINIA,

                   Defendants - Appellees,

             and

UNIVERSITY OF VIRGINIA              HEALTH     SYSTEM;     UNIVERSITY       OF
VIRGINIA MEDICAL SYSTEM,

                   Defendants.



Appeal from the United States District Court for the Western District of Virginia, at
Charlottesville. Norman K. Moon, Senior District Judge. (3:17-cv-00003-NKM-JCH)


Submitted: August 31, 2018                                Decided: October 19, 2018


Before DUNCAN, DIAZ, and HARRIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.
Andrew Nyombi, KNA PEARL, Silver Spring, Maryland, for Appellant. Ronald N.
Regnery, Associate University Counsel, Farnaz F. Thompson, Associate University
Counsel, Office of the University Counsel, UNIVERSITY OF VIRGINIA,
Charlottesville, Virginia, for Defendants.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

      Veronique M. Nzabandora appeals the district court’s orders granting summary

judgment to the Rectors and Visitors of the University of Virginia (“UVA”) and the

Commonwealth of Virginia (collectively, “Defendants”) in her action alleging disparate

treatment, retaliation, and hostile work environment, pursuant to Title VII of the Civil

Rights Act of 1964, as amended, 42 U.S.C.A. §§ 2000e to 2000e–17 (West 2012 & Supp.

2018); and racial discrimination, pursuant to 42 U.S.C. § 1981 (2012). We affirm.

      Nzabandora, an African-American woman of Rwandan ethnicity and national

origin, was employed as a nurse at the UVA Medical Center (“the medical center”).

Nzabandora alleged that, from July through September 2015, a Caucasian nurse—

Brittany Abshire—frequently harassed Nzabandora by making racially charged remarks.

According to Nzabandora, when she reported these incidents to her supervisor Brenda

Barrett and other medical center officials, they dismissed her allegations or made

discriminatory remarks of their own.            In December 2015, Barrett terminated

Nzabandora’s employment after Nzabandora made threatening statements and refused to

cooperate with an investigation into whether she gave a patient incorrect medication.

      Nzabandora challenges the district court’s grant of summary judgment to

Defendants on her Title VII disparate treatment, retaliation, and hostile work

environment claims. 1 “We review a district court’s decision to grant summary judgment


      1
        Nzabandora does not argue her 42 U.S.C. § 1981 discrimination claim on appeal
and has thus waived the issue. See United States v. Bartko, 728 F.3d 327, 335 (4th Cir.
2013).


                                            3
de novo, applying the same legal standards as the district court and viewing all facts and

reasonable inferences therefrom in the light most favorable to the nonmoving party.”

Grutzmacher v. Howard Cty., 851 F.3d 332, 341 (4th Cir.) (internal quotation marks

omitted), cert. denied, 138 S. Ct. 171 (2017). 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).

       As a threshold matter, Nzabandora’s assertion that she suffered other adverse

employment actions in addition to the termination of her employment is without merit.

The record shows that Nzabandora’s hours were not reduced, that she served as a charge

nurse from September through November 2015, and that her withheld wages were the

result of a widespread pay error for which she was later compensated. Nzabandora’s

placement on paid leave pending investigations into her alleged misconduct also does not

constitute adverse employment action for purposes of Title VII. See Jones v. Se. Pa.

Transp. Auth., 796 F.3d 323, 326 (3d Cir. 2015) (“A paid suspension pending an

investigation of an employee’s alleged wrongdoing does not fall under any of the forms

of adverse action mentioned by Title VII’s substantive provision.”). Accordingly, the

termination of Nzabandora’s employment is the only adverse employment action at issue

for her disparate treatment and retaliation claims.

       Nzabandora first claims that, with regard to her disparate treatment claim, the

alleged statements of medical center employees constituted direct evidence of

discrimination.   To survive summary judgment on the basis of direct evidence of

discrimination, a plaintiff must produce “evidence of conduct or statements that both

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reflect directly the alleged discriminatory attitude and that bear directly on the contested

employment decision.” Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 577-78

(4th Cir. 2015) (internal quotation marks omitted). We conclude that, even accepting the

alleged statements as true, Nzabandora fails to show direct evidence of discrimination.

With the exception of Barrett, the employees who made the alleged statements were not

involved in the termination of Nzabandora’s employment and thus these employees’

statements did not bear directly on the termination. See id. Barrett’s alleged statements

also did not demonstrate a discriminatory attitude or bear directly on the termination, as

they neither referenced nor were made contemporaneously with the termination. See id.

       Next, Nzabandora argues that, in any absence of direct evidence of discrimination,

summary judgment on her disparate treatment claim was inappropriate because she

proffered indirect evidence of discrimination that satisfied the McDonnell Douglas Corp.

v. Green, 411 U.S. 792 (1973) framework. Pursuant to this framework:

       (1) the plaintiff must first establish a prima facie case of employment
       discrimination . . . ; (2) the burden of production then shifts to the employer
       to articulate a non-discriminatory . . . reason for the adverse action; [and]
       (3) the burden then shifts back to the plaintiff to prove by a preponderance
       of the evidence that the stated reason for the adverse employment action is
       a pretext and that the true reason is discriminatory . . . .

Guessous v. Fairview Prop. Invs., LLC, 828 F.3d 208, 216 (4th Cir. 2016).                Even

assuming that Nzabandora established a prima facie case, her disparate treatment claim

fails because she does not show that the given reasons for termination were pretext for

discrimination.




                                             5
       At the outset, we note that, because Barrett hired Nzabandora in March 2014 and

terminated Nzabandora’s employment in December 2015, “a strong inference exists that

discrimination was not a determining factor” in the termination. See Proud v. Stone, 945

F.2d 796, 797 (4th Cir. 1991). Nzabandora fails to overcome this presumption. Her

contentions that the medical center changed its given reasons for termination and that the

administration did not genuinely perceive her statements as serious threats are belied by

the record. 2 Further, Nzabandora admitted that she declined to provide her perspective

on the medication error. See Villa v. CavaMezze Grill, LLC, 858 F.3d 896, 901 (4th Cir.

2017) (recognizing that, when employer offers nondiscriminatory reason for adverse

action, “it is not our province to decide whether the reason was wise, fair, or even correct,

ultimately, so long as it truly was the reason for the plaintiff’s termination” (internal

quotation marks omitted)).

       Nzabandora further challenges the district court’s grant of summary judgment on

her retaliation claim. Nzabandora has waived appellate review of the issue by failing, in

the context of this claim, to contest the district court’s determination that the employer’s

given reasons for termination were nonpretextual. See Bartko, 728 F.3d at 335.




       2
          While Nzabandora challenges the district court’s judicial notice of current events
with regard to her threatening statements, we decline to consider this claim because she
raises it for the first time on appeal. See Bresler v. Wilmington Trust Co., 855 F.3d 178,
200 n.23 (4th Cir.), cert. denied, 138 S. Ct. 470 (2017).


                                             6
      Turning to her hostile work environment claim, Nzabandora alleges that

comments made by Abshire, Barrett, and Barrett’s supervisor Joel Anderson created a

hostile work environment. 3

      [T]o prove a hostile work environment claim under Title VII, a plaintiff
      must show (1) unwelcome conduct; (2) that is based on the plaintiff’s
      protected status; (3) which is sufficiently severe or pervasive to alter her
      conditions of employment and to create an abusive work environment; and
      (4) which is imputable to the employer.

Strothers v. City of Laurel, Md., 895 F.3d 317, 328 (4th Cir. 2018) (brackets and internal

quotation marks omitted). As the district court found, Barrett’s statements were unrelated

to Nzabandora’s race and national origin and were not “sufficiently severe or pervasive”

to give rise to a hostile work environment. See id. (internal quotation marks omitted).

      Nzabandora next argues that the district court erred in declining to attribute

Abshire’s remarks to the medical center. To attribute a coworker’s unwelcome conduct

to the employer, “the employee must show that the employer was negligent in controlling

working conditions—that is, the employer knew or should have known about the

harassment and failed to take effective action to stop it.” Strothers, 895 F.3d at 332

(internal quotation marks omitted). Nzabandora’s contention is unavailing, as Barrett

ended any harassment on the part of Abshire by changing Nzabandora’s and Abshire’s

schedules. See EEOC v. Xerxes Corp., 639 F.3d 658, 670 (4th Cir. 2011) (“A remedial

      3
        Although Nzabandora contends that other conditions also contributed to a hostile
work environment, we decline to consider these arguments because she failed to raise
them in response to Defendants’ motion for summary judgment. See Cox v. SNAP, Inc.,
859 F.3d 304, 308 n.2 (4th Cir. 2017) (noting that party waives an issue at summary
judgment when it fails to argue or brief the issue).


                                            7
action that effectively stops the harassment will be deemed adequate as a matter of law.”

(internal quotation marks omitted)). We decline to consider Nzabandora’s argument

raised for the first time on appeal that the medical center failed to promptly address

Abshire’s harassment. See Bresler, 855 F.3d at 200 n.23.

       Finally, Nzabandora contends that the district court should have imputed

Anderson’s alleged statements to the medical center.        “[E]ven when a supervisor’s

harassment does not culminate in a tangible employment action, the employer can be

vicariously liable for the supervisor’s creation of a hostile work environment if the

employer is unable to establish [a Faragher-Ellerth] 4 affirmative defense.” Vance v. Ball

State Univ., 570 U.S. 421, 429 (2013). We conclude that Defendants are not liable for

Anderson’s alleged statements.        The district court determined that Defendants

successfully asserted a Faragher-Ellerth affirmative defense and Nzabandora has

forfeited any arguments regarding Faragher/Ellerth by failing to make such arguments in

response to Defendants’ motion for summary judgment. 5 See Cox, 859 F.3d at 308 n.2.



       4
         Faragher v. City of Boca Raton, 524 U.S. 775, 777-78 (1998) (holding that,
where supervisor’s harassment does not result in tangible employment action, employer
is vicariously liable for supervisor’s creation of hostile work environment unless
employer demonstrates that it exercised reasonable care to prevent and promptly correct
harassment and that plaintiff unreasonably failed to take advantage of preventive or
corrective opportunities); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998)
(same).
       5
        We also reject Nzabandora’s contention that the district court lacked authority to
deny her motion for summary judgment on her hostile work environment claim. See Fed.
R. Civ. P. 56(e) (providing list of actions district court may take if nonmoving party fails
to respond to motion for summary judgment).

                                             8
      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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