UNPUBLISHED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.

On Remand from the Supreme Court of the United States.

(S. Ct. No. 05-10032)

Submitted: February 28, 2007 Decided: March 15, 2007

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.

Vacated and remanded by unpublished per curiam opinion.

Vester Kay Scurlock-Ferguson, Appellant Pro Se. Joel M. Craig,

Erin M. Locklear, KENNON, CRAVER, BELO, CRAIG & MCKEE, PLLC,

Durham, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Vester Kay Scurlock-Ferguson sued her former employer

alleging, among other things, employment discrimination in

violation of Title VII of the Civil Rights Act of 1964. The

district court, adopting the magistrate judge’s recommendation,

denied relief. In particular, the district court found that

Scurlock-Ferguson’s claim that she was transferred in retaliation

for filing an Equal Employment Opportunity Commission charge failed

because the transfer position involved the same pay and benefits

and thus she had suffered no adverse employment action. We

affirmed on appeal concluding “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.”

Scurlock-Ferguson v. City of Durham, 154 F. App’x 390, 394 (4th

Cir. 2005) (unpublished). We relied on James v. Booz-Allen &

Hamilton, Inc., 368 F.3d 371, 375-76 (4th Cir. 2004), for this

finding. Id. The James case, in turn, relied on the reasoning of

our earlier opinion in Von Gunten v. Maryland, 243 F.3d 858 (4th

Cir. 2001).

Scurlock-Ferguson filed a petition for writ of certiorari

with the Supreme Court, which granted the petition, vacated our

opinion, and remanded for further consideration in light of

Burlington N. & S.R.R. Co. v. White, 548 U.S. __, 126 S. Ct. 2405

(2006). See Scurlock-Ferguson v. City of Durham, 126 S. Ct. 2985
*

We offer no criticism of the district court which followed

then-current circuit precedent in denying the retaliation claim.

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(U.S. June 30, 2006) (No. 05-10032). The Burlington opinion

rejected “the standards applied in the Courts of Appeals that have

. . . limited actionable retaliation to so-called ‘ultimate

employment decisions.’” 126 S. Ct. at 2414. Rather, the Court

held a plaintiff could show actionable retaliation if she showed

“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.” Id. (internal quotation and citation omitted).

The Burlington opinion specifically rejected our approach in Von

Gunten. Id. at 2410-11.

Accordingly, we vacate and remand this matter to the

district court in light of the Supreme Court’s opinion in

Burlington.* We decline to address any other issues on appeal, as

the Supreme Court’s remand only addresses the Burlington opinion,

which in the facts of the instant case is limited to the question

of whether Scurlock-Ferguson’s transfer to the Budget Department

could be considered an actionable adverse employment action. 

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.

VACATED AND REMANDED