              Vacated by Supreme Court, June 30, 2006

                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 04-1483



VESTER KAY SCURLOCK-FERGUSON,

                                              Plaintiff - Appellant,

           versus


CITY OF DURHAM,

                                               Defendant - Appellee.


Appeal from the United States District        Court for the Middle
District of North Carolina, at Durham.         James A. Beaty, Jr.,
District Judge. (CA-01-1122-1)


Argued:   September 19, 2005             Decided:    November 17, 2005


Before SHEDD, Circuit Judge, HAMILTON, Senior Circuit Judge, and
Joseph R. GOODWIN, United States District Judge for the Southern
District of West Virginia, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: Marcus A. Jackson, Durham, North Carolina; Olubayo Oyedele
Agbetunsin, Durham, North Carolina, for Appellant.      Joel Miller
Craig, KENNON, CRAVER, BELO, CRAIG & MCKEE, P.L.L.C., Durham, North
Carolina, for Appellee.    ON BRIEF: Erin M. Locklear,      KENNON,
CRAVER, BELO, CRAIG & MCKEE, P.L.L.C., Durham, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

       Vester Kay Scurlock-Ferguson brought this action against the

City of Durham, North Carolina (“the City”), asserting several

federal and state law claims arising from her employment with the

City.    On the City’s motion, the district court entered summary

judgment against Scurlock-Ferguson on all of her claims.                   In this

appeal, Scurlock-Ferguson argues that the district court erred in

granting summary judgment on her claim that the City retaliated

against her in violation of Title VII of the Civil Rights Act of

1964    and   that   it   violated   the      Family   and    Medical   Leave   Act

(“FMLA”).     Finding no error, we affirm.



                                          I

       Federal Rule of Civil Procedure 56(c) provides that summary

judgment      “shall      be   rendered       forthwith      if   the   pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled

to a judgment as a matter of law.”              We review a district court’s

grant of summary judgment de novo, and we view all facts and

inferences in a light most favorable to the nonmoving party.                    Hill

v. Lockheed Martin Logistics Mgt., Inc., 354 F.3d 277, 283 (4th

Cir. 2004) (en banc), cert. dismissed, 125 S. Ct. 1115 (2005).




                                          2
     Scurlock-Ferguson was employed by the City from 1978 until her

termination on December 31, 2000. For a number of years, Scurlock-

Ferguson worked in the City’s Human Resources Department as an

employee relations coordinator and human resource analyst.                     At

times pertinent to this appeal, the director of this department was

Alethea Bell, and Scurlock-Ferguson’s immediate supervisor in the

department was Bernard Farmer.

     Beginning in 1998, Scurlock-Ferguson began to perceive that

she was being harassed and treated unfairly by Bell, Farmer, and

other City employees.       In March 2000, Scurlock-Ferguson was denied

a promotion within the Human Resources Department.1                   In April,

Scurlock-Ferguson     filed    a    charge      with   the   Equal   Employment

Opportunity Commission (“EEOC”) claiming that she had been denied

the promotion and harassed on account of her race and gender.

     On   May    1,   the   City    placed       Scurlock-Ferguson     on     paid

administrative    leave     while   it       investigated    the   circumstances

surrounding her travel on April 11 to an out-of-town workshop.

Scurlock-Ferguson had submitted documentation concerning this trip

on April 17.    In reviewing this documentation, Farmer noticed that

Scurlock-Ferguson had claimed reimbursement for 459 miles, but the

actual round trip distance was approximately 254 miles.                     Farmer

also discovered additional problems relating to Scurlock-Ferguson’s

trip, including her failure to obtain approval for an overnight


     1
      All of the pertinent dates we hereafter refer to are in 2000.

                                         3
stay at the City’s expense.           In June, the City issued a written

warning to Scurlock-Ferguson for failure to follow City policy for

overnight travel related to her attendance at this workshop.

Scurlock-Ferguson did not lose any pay or benefits as a result of

this leave and warning.

      In July, the City transferred Scurlock-Ferguson from the Human

Resources Department to the Budget Department.             The impetus for

this transfer was a discussion between Bell and Budget Director

Laura Gill.      During this discussion, Bell and Gill jointly agreed

to swap Scurlock-Ferguson and another employee, Steve Martin, who

was not well-suited to his Budget Department position.               Bell and

Gill thought that the transfers would place both employees in a

better working situation.        Scurlock-Ferguson was told that this

transfer would be a temporary assignment to see how well she

performed in the Budget Department.          The City did not provide any

formal Budget training to Scurlock-Ferguson; rather, it expected

her to learn her new job primarily through informal training, which

included seeking guidance from her supervisors and co-workers. The

transfer did not affect Scurlock-Ferguson’s salary or benefits.

      During the time Scurlock-Ferguson was on administrative leave

and   employed    in   the   Budget    Department,   the   City   discovered

performance shortfalls with her prior work in the Human Resources

Department.       Specifically, the City discovered that Scurlock-

Ferguson   had     submitted   late    and   inaccurate    reports    to   the


                                       4
Employment Security Commission and that she had failed to maintain

a log of disciplinary actions against City employees.

      By late October, Gill concluded that Scurlock-Ferguson was a

poor fit for the Budget Department.          Consequently, Gill thought it

would      be    best   for   Scurlock-Ferguson   to   return    to   the   Human

Resources Department.           When Bell was informed of this fact, she

responded that she wanted to retain Martin in her department.

      Scurlock-Ferguson has a medical history of hypertension, high

blood pressure, mild depression, and stress.                    On November 2,

Scurlock-Ferguson obtained a note from her family physician, Dr.

Timothy O’Donnell, stating that she was invoking the FMLA and

requesting that she be excused for medical leave until further

notice.         Dr. O’Donnell provided this note to Scurlock-Ferguson at

her request without making any medical observation of her and

without making any determination as to whether she could in fact

work.2      Scurlock-Ferguson presented this note to the City and

obtained medical leave.           Scurlock-Ferguson subsequently obtained

and presented a second note from Dr. O’Donnell, in which he stated

that she reported to him that she could return to work on December

13.       Again, Dr. O’Donnell prepared this note solely because of

Scurlock-Ferguson’s request.




      2
      Dr. O’Donnell testified in his deposition that he did not
prohibit Scurlock-Ferguson from working and, in fact, would have
permitted her to work. See J.A. 173-77.

                                        5
       Scurlock-Ferguson returned to work on December 13. Because of

uncertainty surrounding her department assignment (i.e., Budget or

Human Resources), Scurlock-Ferguson was sent home to await further

instructions.    Thereafter, Bell and Gill consulted with the City

Manager about Scurlock-Ferguson’s status, and both women declined

to accept her in their departments.           Gill declined because of

Scurlock-Ferguson’s poor performance in the Budget Department.

Bell declined because of Scurlock-Ferguson’s performance problems

and because Scurlock-Ferguson had been uncomfortable working in the

Human Resources Department.3       Presented with this information, the

City Manager notified Scurlock-Ferguson by letter dated December 19

that the City was terminating her employment effective December

31.4



                                     II

       Scurlock-Ferguson   filed    this   lawsuit   asserting   causes   of

action under Title VII and 42 U.S.C. § 1981 for hostile work

environment, discriminatory failure to promote, and retaliation;

under the FMLA for failure to return her to a comparable position

following her medical leave; and under state law for intentional


       3
      Bell had also consulted with Farmer, and Farmer recommended
that Martin (rather than Scurlock-Ferguson) continue in his
position in the Human Resources Department.
       4
      Scurlock-Ferguson subsequently filed a retaliation complaint
with the EEOC, and the EEOC issued her right-to-sue letters for
both of her complaints.

                                     6
and negligent infliction of emotional distress.                   Following the

close of discovery, the City moved for summary judgment.                   In a

well-reasoned report, a magistrate judge recommended that the

district    court   grant   the    City’s     motion   on   all   of   Scurlock-

Ferguson’s claims. See J.A. 187-212. The district court conducted

a de novo review and entered summary judgment against Scurlock-

Ferguson on all of her claims. See J.A. 224-25. Scurlock-Ferguson

only appeals the grant of summary judgment on her claims that the

City retaliated against her in violation of Title VII and that it

violated the FMLA.     As set forth below, we find that the district

court did not err in granting summary judgment on these claims.



                                        A.

     We begin with Scurlock-Ferguson’s Title VII claim.                Title VII

prohibits retaliation against an employee who has engaged in a

protected activity, such as filing a complaint of discrimination

with the EEOC.      See 42 U.S.C.A. § 2000e-3(a).           The City does not

dispute that Scurlock-Ferguson engaged in a protected activity by

filing the April EEOC complaint.             Scurlock-Ferguson contends that

in response to this complaint the City retaliated against her by

(1) placing her on administrative leave pending the travel policy

violation    investigation,       (2)   transferring    her   to    the   Budget




                                        7
Department, and (3) terminating her employment.5      As Scurlock-

Ferguson notes, each of these employment decisions was made within

eight months after she filed her EEOC charge.

     In analyzing the retaliation claim, the district court --

citing Laughlin v. Metropolitan Washington Airports Authority, 149

F.3d 253, 258 (4th Cir. 1998) -- applied the McDonnell-Douglas

burden-shifting framework that is generally applicable to Title VII

retaliation claims involving indirect proof. Under this framework,

the plaintiff bears the initial burden of establishing a prima

facie case of retaliation, which requires evidence that (1) she

engaged in a protected activity, (2) the defendant took an adverse

employment action against her, and (3) a causal connection exists

between the protected activity and the adverse action.      If the

plaintiff establishes a prima facie case, then the burden shifts to

the defendant to rebut the prima facie case by articulating a

legitimate, non-discriminatory reason for the adverse employment

action.   If the defendant articulates such a reason, then the




     5
      Scurlock-Ferguson did not object to the magistrate judge’s
recommendation that summary judgment be granted on her retaliation
claim to the extent the claim was based on the administrative leave
and transfer.    See J.A. at 213-16, 221.       Although Scurlock-
Ferguson’s failure to file an objection on these issues ordinarily
constitutes a waiver of her right to appeal the summary judgment on
these issues, see Diamond v. Colonial Life & Accident Ins. Co., 416
F.3d 310, 315-16 (4th Cir. 2005), we will nonetheless address them
because the district court conducted a de novo review, and the City
does not argue waiver on appeal (although it did argue waiver
below).

                                8
plaintiff   must   present   evidence   showing   that   the   defendant’s

proffered reason is a mere pretext for intentional retaliation.

     The district court concluded that the City articulated a

legitimate, non-discriminatory reason for placing Scurlock-Ferguson

on paid administrative leave and that she failed to establish that

this reason is pretextual.       See J.A. 197-98.        We hold that the

undisputed evidence in the record amply supports this conclusion.

Not only does it appear to be undisputed that the City placed

Scurlock-Ferguson on leave in order to investigate her violation of

City travel policy, but it also appears to be undisputed that she

did, in fact, violate the travel policy.6

     The district court also concluded that Scurlock-Ferguson’s

transfer to the Budget Department is not a cognizable adverse

employment action because she did not lose any salary or benefits.

See J.A. at 198-99.    Again, we hold that this conclusion is proper

based on the undisputed evidence in the record.          See, e.g., James

v. Booz-Allen & Hamilton, Inc., 368 F.3d 371, 375-76 (4th Cir.),

cert. denied, 125 S. Ct. 423 (2004) (noting that a job reassignment

“can only form the basis of a valid Title VII claim if the


     6
      Scurlock-Ferguson argues that the length of time she was on
administrative leave violated City policy because it exceeded 10
days without written approval by the City Manager. We agree with
the district court that the evidence establishes that extensions of
leave were frequently made on oral approval and that the City
Manager was aware of her continued leave status. We also agree
that the City’s alleged violation of its own policy does not in any
event undermine the City’s proffered reason for placing Scurlock-
Ferguson on administrative leave. See J.A. at 198 n.2.

                                   9
plaintiff can show that the reassignment had some significant

detrimental effect” and that absent “any decrease in compensation,

job title, level of responsibility, or opportunity for promotion,

reassignment to a new position commensurate with one’s salary level

does not constitute an adverse employment action even if the new

job does cause some modest stress not present in the old position”

(citation and internal punctuation omitted)).

     The district court further concluded that Scurlock-Ferguson

failed to establish a prima facie case of retaliation regarding her

termination because she did not show a causal connection between

her EEOC charge and the termination, which occurred eight months

after she filed the charge.     See J.A. at 199-202.      In reaching this

conclusion,   the   district   court    also   found   that   the   City   had

consistently given a legitimate reason (i.e., poor performance) as

the basis for the termination.     See id. at 202.      We need not decide

whether Scurlock-Ferguson established a prima facie case on this

aspect of her claim because we hold, in any event, that the City

has proffered a legitimate, non-discriminatory reason for the

termination, and that Scurlock-Ferguson has failed to establish

that the reason is pretextual.7


     7
      It is not clear whether the district court actually ruled on
the issue of pretext on this aspect of the retaliation claim.
However, the City argued below and on appeal that Scurlock-Ferguson
failed to establish that its proffered reason for the termination
is pretextual.    Under these circumstances, we may affirm the
summary judgment on this basis. See United States v. Swann, 149
F.3d 271, 277 (4th Cir. 1998) (“we may affirm the district court’s

                                   10
                                     B.

     We now turn to Scurlock-Ferguson’s FMLA claim.               The FMLA

guarantees an eligible employee twelve workweeks of leave annually

“[b]ecause of a serious health condition that makes the employee

unable to perform the functions of the position of such employee,”

and it provides that the taking of such leave “shall not result in

the loss of any employment benefit accrued prior to the date on

which    the   leave   commenced.”        29   U.S.C.   §§   2612(a)(1)(D),

2614(a)(2).    Scurlock-Ferguson contends that the City violated the

FMLA by failing to restore her to the same or a comparable position

upon her return from medical leave in December.

     In granting summary judgment for the City on the FMLA claim,

the district court, primarily relying on Rhoads v. F.D.I.C., 257

F.3d 373 (4th Cir. 2001), cert. denied, 535 U.S. 933 (2002), held

that Scurlock-Ferguson failed to meet her burden of presenting

evidence to establish that she had a serious health condition that

made her unable to perform the functions of her job.8          The district



judgment for any reason supported by the record, even if it is not
the basis that the district court used”). In doing so, we agree
with the district court that Scurlock-Ferguson’s contention that
the City provided different explanations for her termination is
without merit. See J.A. at 200-02.
     8
      In Rhoads, we held that the district court properly required
the FMLA plaintiff “to prove that she was afflicted with an
FMLA-qualifying condition, because otherwise she did not have any
right under the Act with which her employer could have interfered.”
257 F.3d at 384.     Like the district court, we find Scurlock-
Ferguson’s attempt to distinguish Rhoads to be unpersuasive.

                                     11
court concluded that Dr. O’Donnell’s medical records and deposition

testimony provide no support for Scurlock-Ferguson’s FMLA claim

because he did not treat her at the time she requested medical

leave, and he did not know of any medical reason why she would have

been unable to work during that time.   Based on our review of the

record, we hold that the district court correctly decided this

issue.   See J.A. 202-11.



                               III

     Based on the foregoing, we affirm the district court’s grant

of summary judgment in favor of the City.

                                                          AFFIRMED




                                12
