                            UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

                                             2
               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:



                                         4
       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).



                                      5
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)

                                           6
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

                                           7
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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