UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

EARL S. COTTMAN, 

Plaintiff-Appellant,

v.  No. 01-1545

ROBERT RUBIN, Secretary,

Department of the Treasury,

Defendant-Appellee. 

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Benson E. Legg, District Judge.

(CA-98-4067-L)

Submitted: April 3, 2002

Decided: May 3, 2002

Before TRAXLER and GREGORY, Circuit Judges, and

HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion. 

COUNSEL

Karl W. Carter, Jr., Washington, D.C., for Appellant. Thomas M.

DiBiagio, United States Attorney, Virginia B. Evans, Assistant United

States Attorney, Baltimore, Maryland for Appellee.
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Earl Cottman, a special agent of the United States Customs Service, appeals the district court’s granting of his employer’s motion for

summary judgment, dismissing his claims of discriminatory treatment

based upon race and reprisal in violation of Title VII of the Civil

Rights Act, 42 U.S.C.A. §§ 2000e to 2000e-17 (West 1994 & Supp.

2001). We affirm. 

Cottman, an African-American, has been employed with the United

States Department of Treasury (Department) since 1975. He contends

the Department discriminated against him because of his race and in

reprisal for his prior Equal Employment Opportunity (EEO) activities.

The events leading to this lawsuit include an unacceptable performance rating for the 1993-1994 rating period, following which Cottman was offered the opportunity to improve by being placed on a

Performance Improvement Plan (PIP) in accordance with Customs’

policy, which he successfully completed. Cottman also did not

receive a Commissioner’s unit citation award, whereas four case

agents, two African-Americans and two Caucasians, received the

award for their involvement in four major heroin investigations. The

record indicates, however, Cottman was not the case agent in any of

the investigations and had logged fewer hours than the recognized

agents. 

Cottman was not recommended for participation in a special investigative assignment for the Office of Internal Affairs for which he volunteered during the pendency of his involvement in the PIP and while

he was the subject of an ongoing Internal Affairs investigation.1 The

1Cottman conducted a vehicle stop without any nexus to a border or

Customs related enforcement activity during which he drew his weapon;

2 COTTMAN v. RUBIN
record further evidenced his supervisor believed he was not technically competent to complete the assignment. Notably, four other

agents, including an African-American, were recommended. The

Internal Affairs investigation led to Cottman’s fourteen-day suspension without pay.2

We review an award of summary judgment de novo. Higgins v. E.I.

Dupont de Nemours & Co., 863 F.2d 1162, 1167 (4th Cir. 1988).

Summary judgment is appropriate when there is no genuine issue of

material fact, given the parties’ burdens of proof at trial. Fed. R. Civ.

P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-49

(1986). In determining whether the moving party has shown that there

is no genuine issue of material fact, we assess the factual evidence

and all inferences to be drawn therefrom in the light most favorable

to the non-moving party. Id. at 255; Smith v. Virginia Commonwealth

Univ., 84 F.3d 672, 675 (4th Cir. 1996). 

Title VII prohibits discrimination on the basis of race, color, religion, sex, or national origin. To establish a prima facie case of disparate treatment, Cottman must show: (1) he is a member of a protected

class; (2) he has satisfactory job performance; (3) he was subjected

to adverse employment action; and (4) similarly situated employees

outside his class received more favorable treatment. See Texas Dep’t

of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981). To prevail on

a Title VII retaliation claim, Cottman must show: (1) he engaged in

a protected activity; (2) his employer took adverse employment action

against him; and (3) a sufficient causal connection existed between

used his personally owned shotgun during the execution of a search warrant after having been informed previously that use of his shotgun was

not authorized; and stored his personal, unauthorized shotgun in his Government vehicle, fully loaded with the safety off, in violation of Customs

policy. A report of the first two incidents by an African-American deputy

prompted the Internal Affairs investigation. 

2Cottman further complains for the first time on appeal he was denied

leave to attend the Internal Law Enforcement Olympics. Because Cottman raises this claim for the first time on appeal and does not allege

exceptional circumstances, we decline to consider the claim. See Muth v.

United States, 1 F.3d 246, 250 (4th Cir. 1993). 

COTTMAN v. RUBIN 3
the first two elements. See Hopkins v. Baltimore Gas & Elec. Co., 77

F.3d 745, 754 (4th Cir. 1996). 

If Cottman establishes a prima facie case, the burden shifts to the

Department to articulate a legitimate, non-discriminatory reason for

the adverse action. See Burdine, 450 U.S. at 254. If the Department

meets this burden, Cottman must show by a preponderance of the evidence that the proffered reason was pretextual, and that the adverse

action was motivated by discrimination. See Reeves v. Sanderson

Plumbing Prods., Inc., 530 U.S. 133, 147-48 (2000). Although the

burden of production shifts, Cottman retains the burden of persuasion

throughout all stages. See Burns v. AAF-McQuay, Inc., 96 F.3d 728,

731 (4th Cir. 1996). 

We find Cottman’s claims the Department discriminated against

him by placing him on a PIP, not nominating him for the special

investigative assignment, and not recommending him for the Commissioner’s award fail because the actions do not amount to redressable adverse employment actions, and he fails to establish a causal

connection between the Department’s actions and his prior protected

activities. See Page v. Bolger, 645 F.2d 227, 233 (4th Cir. 1981)

(focusing on whether there has been discrimination in an ultimate

employment decision such as hiring, granting leave, discharging, promoting, and compensating). Moreover, Cottman failed to establish

discriminatory animus. Even if Cottman were able to establish a

prima facie case with respect to these claims, he failed to rebut the

Department’s non-discriminatory reasons for its actions. See Williams

v. Cerberonics, 871 F.2d 452, 456 (4th Cir. 1989) (concluding a

plaintiff’s own assertions of discrimination are insufficient to counter

substantial evidence of legitimate non-discriminatory reasons for

adverse employment action). Likewise, assuming without deciding

Cottman established a prima facie case of discrimination based on

race and reprisal with respect to his suspension, we find he failed to

rebut the Department’s legitimate, non-discriminatory reasons for its

actions. Id. Therefore, we conclude the district court did not err in

granting summary judgment in favor of the Department, dismissing

Cottman’s complaint. 

Accordingly, we affirm. We dispense with oral argument because

the facts and legal contentions are adequately presented in the materi4 COTTMAN v. RUBIN
als before the court and argument would not aid the decisional process.

AFFIRMED

COTTMAN v. RUBIN 5