                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-2217



MILAGROS PEREZ-TATEM,

                                              Plaintiff - Appellant,

          versus


GORDON ENGLAND, Secretary Department of Navy,

                                               Defendant - Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonard D. Wexler, Senior
District Judge, sitting by designation. (1:05-cv-00450-LDW)


Submitted:   September 26, 2007           Decided:   October 11, 2007


Before WILKINSON and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Nathaniel D. Johnson, THE LAW FIRM OF NATHANIEL D. JOHNSON,
Waldorf, Maryland, for Appellant. Chuck Rosenberg, United States
Attorney, Kevin J. Mikolashek, Assistant United States Attorney,
Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Milagros   Perez-Tatem   (“Tatem”)   appeals   the   district

court’s denial of her motion for a new trial, challenging the

jury’s verdict in favor of her employer, the United States Navy

(“the Secretary”).     Tatem contends the district court abused its

discretion in refusing to give a mixed-motive instruction she

proposed.    For the reasons that follow, we affirm.

            We review challenges to jury instructions for an abuse of

discretion. South Atlantic Ltd. P’ship v. Riese, 284 F.3d 518, 530

(4th Cir. 2002).       Instructions will be considered “adequate if

‘construed as a whole, and in light of the whole record, [they]

adequately [inform] the jury of the controlling legal principles

without misleading or confusing the jury to the prejudice of the

objecting party.’”     Id. (quoting Spell v. McDaniel, 824 F.2d 1380,

1395 (4th Cir. 1987)).       If this court finds the instructions

flawed, it will not reverse “unless the error seriously prejudiced

the challenging party’s case.”       Id. (citation omitted).

            Tatem proposed an instruction stating, “there must be

competent evidence that the alleged retaliatory motive played a

part in the adverse employment actions alleged.”      The instructions

provided to the jury stated that the jury had to “decide whether

the plaintiff has proven by a preponderance of the evidence that

the defendant has intentionally retaliated against her when she was

not promoted to the GS-12 level in July of 2003.”     The instructions


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also stated that Tatem was “not required to produce direct evidence

of retaliation.      Intentional retaliation may be inferred from the

existence of other facts.”

          Tatem waived her opportunity to propose a mixed-motive

instruction by failing to timely file instructions in accordance

with the Eastern District of Virginia’s Local Rule 51 (“in all

cases   tried   to    a   jury    the   parties    shall    submit    proposed

instructions . . . at least five (5) business days before the

scheduled trial date.”).          Tatem filed proposed instructions on

March 22, 2005, three business days before trial.                    We cannot

conclude the district court clearly abused its discretion in

determining that Tatem’s proposed instructions were untimely and

rejecting the instruction on that basis.             See Ardrey v. United

Parcel Service, 798 F.2d 679, 682 (4th Cir. 1986).

          Furthermore,      the    facts    here   are     unlike    those   in

Rowland v. Am. Gen. Fin., Inc., 340 F.3d 187, 192 n.3 (4th Cir.

2003), where the district court instructed the jury that it had to

conclude gender was the “determinative factor” in the decision not

to promote and unless gender and gender alone were the basis for

the decision, the plaintiff could not recover.              In Rowland, the

court’s misleading instruction seriously prejudiced the plaintiff’s

case in the face of evidence that the supervisor who had the

authority to promote the plaintiff allegedly admitted that he “just

[didn’t] need another woman in this position” and evidence that


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another female superior confirmed that gender was the reason for

the plaintiff’s lack of promotion.         Rowland, 340 F.3d at 193-94.

In contrast, the instructions given by the court in this case did

not   suggest   that   retaliation   had   to   be   the   determinative   or

exclusive factor in the decision not to promote.

           We also reject Tatem’s argument that the instruction was

mandated by the court’s ruling on summary judgment.           In its ruling

on summary judgment, the court merely concluded that the jury

should be allowed to consider Tatem’s supervisor’s alleged comments

and determine whether those statements amounted to evidence that

the supervisor retaliated against Tatem when she did not promote

her several months later.      The court did not rule, nor could it

have ruled at the summary judgment stage, on the applicability of

specific jury instructions.

           Accordingly, we affirm the district court’s order denying

Tatem’s motion for a new trial.          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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