UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-1601

THUMBELINA BROWN,

Plaintiff - Appellant,

versus

MCLEOD REGIONAL MEDICAL CENTER OF THE PEE DEE,

INC.,

Defendant - Appellee.

Appeal from the United States District Court for the District of

South Carolina, at Florence. R. Bryan Harwell, District Judge.

(CA-02-3973-4)

Submitted: January 3, 2006 Decided: January 25, 2006

Before MICHAEL, TRAXLER, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Chalmers C. Johnson, Charleston, South Carolina, for Appellant.

Charles E. McDonald, III, OGLETREE, DEAKINS, NASH, SMOAK & STEWART,

P.C., Greenville, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Thumbelina Brown sues her former employer, McLeod

Regional Medical Center of the Pee Dee, Inc. (McLeod), for race

discrimination in her employment, in violation of Title VII and

section 1981. The district court granted summary judgment to

McLeod, and Brown appeals. We affirm for the reasons stated below.

I.

Brown, an African-American woman, began working as a

nursing assistant at the McLeod Gynecology and Obstetrics Unit in

1978. She moved to the position of unit secretary in 1998. On or

around May 26, 2000, Brown broke her ankle in a car accident and

underwent surgery. She requested a leave of absence after her

surgery because she was unable to return to work. In response,

McLeod requested that Brown’s doctor complete a “Medical

Certification.” McLeod also provided Brown with notice of her

Family and Medical Leave Act (FMLA) rights and directed her to

contact the McLeod Human Resources Office about short-term

disability benefits. On June 12, 2000, Dr. Angus McBryde completed

Brown’s medical certification, which indicated that Brown could not

return to work for at least three months. On July 17 McLeod

notified Brown that her request for a medical leave of absence was

approved but that the leave did not qualify for FMLA protection.

On August 14 Dr. McBryde completed a second medical certification,
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which indicated that Brown could return to work provided she was

not required to stand or walk. Dr. McBryde wrote a note on

November 22 indicating that Brown could return to work with three

restrictions: she spend no more than ten minutes per hour on her

feet, she spend no more than five minutes per hour walking, and she

refrain from kneeling, bending, or carrying anything over three to

four pounds during the time on her feet. Although Brown was ready

to return to work, McLeod determined that Brown could not perform

the essential functions of the unit secretary position with these

restrictions; thus McLeod did not let her return.

Several months later, in April 2001, Dr. McBryde

completed another medical certification, which indicated that Brown

could return to work with the restriction of “no standing or

walking as part of the job.” J.A. 311. McLeod again did not allow

Brown to return to work. Soon thereafter, McLeod Work Recovery

Manager John Zelenka performed a work site evaluation to determine

if Brown could perform the essential functions of the unit

secretary position with the restrictions Dr. McBryde placed on her.

After talking to Dr. McBryde, interviewing other unit secretaries,

and observing a unit secretary perform the job, Zelenka concluded

that Brown could not perform the essential job functions. Zelenka

also considered whether Brown could perform her job with a

motorized scooter, but concluded that the scooter was not a viable
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solution because it would not fit in all areas pertinent to the

job.

McLeod’s leave of absence policy provides that employees

who remain on leave for twelve months without returning to work are

subject to termination. Brown’s leave reached twelve months on May

26, 2001. However, McLeod extended Brown’s leave so that she could

look for another position at McLeod where her restrictions could be

accommodated. McLeod asserts that it made several attempts to

contact Brown by phone about other job opportunities at McLeod that

might meet her restrictions, but that Brown never responded. Brown

does not deny this assertion. McLeod terminated Brown’s employment

on September 1, 2001. 

Brown sued McLeod, alleging discrimination on the basis

of race, in violation of Title VII, 42 U.S.C. § 2000e et seq., and

42 U.S.C. § 1981. On April 29, 2005, upon the recommendation of

the magistrate judge, the district judge entered summary judgment

for McLeod. Brown appeals. 

II.

Brown argues that the district court erred in using the

Title VII burden shifting test, see McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973), because Desert Palace, Inc. v. Costa,

539 U.S. 90 (2003), requires mixed-motive analysis, see Price

Waterhouse v. Hopkins, 490 U.S. 228 (1989), in all Title VII cases
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at summary judgment. We recently rejected this argument in Diamond

v. Colonial Life & Accident Insurance Co., 416 F.3d 310, 317 (4th

Cir. 2005). Regardless of whether Brown alleges that race was a

motivating factor or the sole reason for McLeod’s actions, McLeod

is entitled to summary judgment because Brown has failed to show

that there is a genuine issue of material fact as to whether McLeod

intentionally discriminated against her on the basis of race. See

id. at 319. 

Brown argues that the district court erred in concluding

that she had failed to establish a genuine issue of material fact

on the fourth element of her prima facie case for race

discrimination: that other similarly situated employees who are

not members of the protected class were retained. See Bryant v.

Bell Atlantic Md., Inc., 288 F.3d 124, 133 (4th Cir. 2002).

Specifically, Brown alleges that the court erred in finding no

genuine issue of material fact as to whether Debra Powell, a white

employee, was in a situation similar to Brown’s. Although both

employees took leaves of absence, they are not similarly situated

because Powell was on FMLA leave while Brown was not. Furthermore,

Powell was released to return to work with minor restrictions after

less than one month and returned to work without restriction after

four months. Brown, however, was released to work after three

months, but only with significant restrictions. At no point was

Brown released to work without restriction. We therefore conclude
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that the district court did not err in determining that there is no

genuine issue of material fact as to whether Powell and Brown were

similarly situated. Because Brown cannot establish a prima facie

case of discrimination, McLeod is entitled to summary judgment. 

III. 

For the foregoing reasons, 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