UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 08-2089

THOMAS E. PERRY, 

 Plaintiff - Appellant, 

 v. 

MARY E. PETERS, Secretary of Transportation, 

 Defendant - Appellee. 

Appeal from the United States District Court for the Eastern 

District of Virginia, at Alexandria. Gerald Bruce Lee, District 

Judge. (1:07-cv-01256-GBL-TCB) 

Submitted: June 11, 2009 Decided: July 2, 2009 

Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior 

Circuit Judges. 

Affirmed by unpublished per curiam opinion. 

Thomas E. Perry, Appellant Pro Se. Yiris E. Cornwall, Leslie 

Bonner McClendon, Assistant United States Attorneys, Alexandria, 

Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

 Thomas E. Perry filed this action against Mary E. 

Peters, the Secretary of Transportation, alleging employment 

discrimination arising from his employment termination. The 

district court granted the defendant’s motion for summary 

judgment and denied Perry’s motion to dismiss without prejudice. 

Perry appeals, arguing that the district court erred by denying 

his motion to amend his complaint, by finding that he failed to 

establish a prima facie case of discrimination, and by finding 

that the defendant articulated a legitimate, non-discriminatory 

reason for removing him from his position. We find no error and 

affirm. 

 As an initial matter, Perry contends that during the 

July 25, 2008, hearing, he made an oral motion for leave to 

amend his complaint. The transcript of that hearing shows Perry 

did not move for leave to amend his complaint. The only mention 

of an amendment followed the parties’ arguments on whether Perry 

had demonstrated he was qualified for the position of 

air-traffic controller. At that time, Perry stated, “So, I—

there are some things in my complaint that still are factors but 

would need to be amended.” Perry did not move to amend the 

complaint nor even explain what portions of his complaint he 

would like to amend. Therefore, this issue lacks merit. 

2 
 Turning to the remainder of Perry’s argument on 

appeal, this court reviews a district court’s order granting 

summary judgment de novo, viewing the record in the light most 

favorable to the non-moving party. Hooven-Lewis v. Caldera, 249 

F.3d 259, 265 (4th Cir. 2001). Summary judgment may be granted 

only when “there is no genuine issue as to any material fact” 

and “the movant is entitled to judgment as a matter of law.” 

Fed. R. Civ. P. 56(c). To withstand a motion for summary 

judgment, the non-moving party must produce competent evidence 

sufficient to reveal the existence of a genuine issue of 

material fact for trial. See Fed. R. Civ. P. 56(e)(2). 

 To establish a prima facie case of disparate treatment 

discrimination, a plaintiff must show that he is a member of a 

protected class, he is qualified for the position, he suffered 

an adverse employment action, and an employee not in the 

protected class replaced him or was treated more favorably. 

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

Cir. 2004). If the plaintiff establishes a prima facie case of 

discrimination, the burden shifts to the defendant to articulate 

some legitimate, nondiscriminatory reason for the employee's 

rejection. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 

248, 254 (1981). Our review of the record discloses that the 

district court properly concluded that Perry failed to establish 

a prima facie case of discrimination because he cannot show that 

3 
he satisfies the medical requirements for the position of 

air-traffic controller. 

 To prevail on his Title VII retaliation claim, Perry 

was required to show that: (1) he engaged in a protected 

activity; (2) an adverse action was taken against him by the 

employer; and (3) there was a causal connection between the 

first two elements. See Lettieri v. Equant Inc., 478 F.3d 640, 

650 (4th Cir. 2007). Once a plaintiff establishes his prima 

facie case, the burden shifts to the employer to put forth a 

legitimate, non-discriminatory reason for the action. McDonnell 

Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). If this 

burden is met, the plaintiff must then show that the “proffered 

reasons are pretextual or his claim will fail.” Price v. 

Thompson, 380 F.3d 209, 212 (4th Cir. 2004). To show pretext, 

the plaintiff must show that the defendant’s reason is “unworthy 

of credence” or offer other forms of circumstantial evidence 

demonstrating retaliation. Id. 

 The defendant proffered that Perry did not meet the 

medical requirements for the position. Perry argued this 

justification was a mere pretext, but did not present evidence 

refuting this justification. Therefore, the district court 

properly granted summary judgment to the defendant on Perry’s 

claim of retaliation. 

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5 

 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