UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 05-1134

MIREYA LYLE; JESSICA CUBAS,

Plaintiffs - Appellants,

versus

COUNTY OF FAIRFAX VIRGINIA,

Defendant - Appellee.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Claude M. Hilton, District Judge. (CA-04-519)

Argued: January 31, 2006 Decided: March 10, 2006

Before GREGORY, SHEDD, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Nils George Peterson, Jr., Arlington, Virginia, for Appellants. Karen Lee Gibbons, Assistant County Attorney, OFFICE OF THE COUNTY ATTORNEY, Fairfax, Virginia, for Appellee. ON BRIEF: David P. Bobzien, County Attorney, Peter D. Andreoli, Jr., Deputy County Attorney, Fairfax, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Appellants Mireya Soledad Lyle and Jessica Cubas (collectively

“the plaintiffs”) brought this action against their employer, the

County of Fairfax, Virginia (“Fairfax County”), alleging sex and

national origin discrimination, retaliation, and hostile work

environment in violation of Title VII of the Civil Rights Act of

1964, 42 U.S.C. §§ 2000e et seq. In addition, Cubas brought a

claim against Fairfax County for failure to pay proper overtime in

violation of the Fair Labor Standards Act (“FLSA”),

et seq. Lyle and Cubas now appeal the district court’s grant of

summary judgment to Fairfax County on their Title VII and FLSA

claims. For the reasons set forth below, we affirm.

I.

We state the facts in the light most favorable to the

plaintiffs. Cubas and Lyle, both Hispanic-American females,

presently work as civilian employees for Fairfax County. Plaintiff

Cubas serves as a Probation Counselor II (“PCII”) in the Victim

Services Section (“Victim Services”) of the Fairfax Police

Department, a position that she has held since her hiring in 1998.

Plaintiff Lyle joined Victim Services in 2000 as a PCII and worked

with Cubas in that capacity until 2003. While Cubas and Lyle both

worked for Victim Services, they were under the supervision of

Carroll Ann Ellis. Ellis, an African-American female, recommended

2 the plaintiffs for hire in 1998 and 2000, respectively. Ellis

reported directly to Fairfax Police Captain David Sommers, a white

male.

A.

In October 2002, while Cubas and Lyle were working together at

Victim Services, they were involved in a traffic accident in a

county vehicle. Cubas, who was driving, struck a concrete planter

barrier, causing damage to the front passenger side of the vehicle.

At the time of the accident, plaintiff Lyle was sitting in the

front passenger seat. After returning to Police headquarters,

Cubas reported the accident (her third in a county vehicle) to

Sommers. Instead of relating that she had hit the concrete planter

barrier while parking, Cubas told Sommers that the damage had been

caused by a hit-and-run driver. J.A. 818. At Sommers’s urging,

Cubas reiterated this version of events in an official accident

report.

Subsequently, Fairfax County Police Lieutenant Richard Bearden

conducted an investigation of the accident and concluded that Cubas

had struck the planter barrier while parking. J.A. 817-23; 906-07.

Accordingly, Bearden found Cubas to be in violation of several of

the Department’s regulations, including failure to make truthful

statements during the course of an investigation. Bearden also

concluded that Lyle had been untruthful during the course of his

3 investigation. After an administrative hearing in November 2002,

Sommers sustained Bearden’s findings and recommended both Cubas’s

and Lyle’s termination. Subsequently, the plaintiffs filed

grievances with Fairfax County, alleging that Sommers and Ellis had

discriminated against them. J.A. 828-842; 1492-98; 1552-53.

In early 2003, then Fairfax Police Colonel Thomas Manger

initiated an investigation of the plaintiffs’ discrimination

complaints.1 Ultimately, in March 2003, Colonel Manger concluded

that their allegations of gender and national origin discrimination

were unfounded. Manger concluded in pertinent part as follows:

The complaints made by Mrs. Cubas and Ms. Lyle were an attempt to save their own jobs and did not accurately represent the conditions that exist in the Victim Services Section. However, I do believe that there is a personality conflict between Mrs. Ellis and Mrs. Cubas, which both readily admitt [sic]. The cause of this conflict is not known, nor is it relevant. However, I do not believe that this conflict affected Mrs. Ellis’ ability to effectively supervise Mrs. Cubas. My investigation has revealed that Mrs. Cubas and Ms. Lyle were not unlawfully discriminated against while employed in the Victim Services Section.

J.A. 936. The plaintiffs contend that these findings are suspect,

because the investigator had refused to consider a 1998

departmental investigation regarding Ellis’s contentious

relationship with a co-worker.2 The investigator testified at his

1 Manger is now Chief of Police. 2 In October 1997, the Department investigated Victim Services employee Cornelia Harrington’s allegations against Ellis regarding her management style. The Department concluded that the problems

4 deposition that he did not consider the 1998 investigation because

he wanted to remain impartial in considering Cubas and Lyle’s

unrelated discrimination charges. J.A. 1159.

At the same time Colonel Manger was investigating the

plaintiffs’ charges of discrimination, Deputy Police Chief David

Rohrer conducted an independent review of the accident

investigation findings and Sommers’s disciplinary sanctions against

Cubas and Lyle. As to Lyle, Rohrer concluded that the lack of

truthfulness finding was “Not Sustained.” J.A. 856. Deputy Chief

Rohrer emphasized that although he ultimately reached a different

conclusion than Sommers had, he found that Sommers’s conclusions

regarding Lyle’s truthfulness were “reasonable” given Lyle’s

initial “vague” and “incomplete” statements regarding her

recollection of the accident. J.A. 857. Accordingly, Manger

concluded that Lyle would not be reprimanded or sanctioned for her

involvement. As to Cubas, Rohrer sustained Sommers’s finding that

Cubas had violated regulations pertaining to the safe operation of

county vehicles, but concluded that the lack of truthfulness

allegation was “Not Sustained.” J.A. 849-62. Pursuant to

between Ellis and Harrington were the result of personality conflicts. Thereafter, Harrington was transferred to the Animal Control Division. In September 1998, Harrington complained that Ellis had made derogatory and demeaning comments about her sexual preferences in violation of Department regulations. After conducting a second and more extensive investigation and substantiating Harrington’s charges, the Department suspended Ellis for twenty-four hours and issued her a written reprimand for unbecoming conduct.

5 departmental policy, Rohrer issued Cubas a written reprimand for

her third accident in a county vehicle. No other disciplinary

action was taken.

B.

In April 2003, shortly after Manger and Rohrer had completed

their investigations, the Fairfax County Executive implemented a

County-wide reduction-in-force plan (“RIF”) in accordance with the

fiscal year 2004 budget. This RIF led to the elimination of thirty

occupied merit positions throughout the County, including Lyle’s

position at Victim Services. The facts pertaining to the RIF are

outlined below.

In July 2002, several months prior to the accident and the

lodging of discrimination complaints, Fairfax County’s Director of

Management and Budget mandated that each County agency identify

workforce reductions of five percent as part of its fiscal year

2004 budget requests.3 Accordingly, in September 2002, the Fairfax

Police Department submitted its anticipated fiscal year 2004

budget, which identified sixty-nine positions that could be

eliminated. Of these sixty-nine positions, twenty were occupied,

including one PCII position at Victim Services. The remaining

3 The fiscal year 2004 budget was scheduled to be adopted in the spring of 2003.

6 forty-nine positions identified for possible elimination were

vacant.

Subsequently, in April 2003, the Fairfax County Executive

implemented the County-wide RIF in accordance with the recently-

approved fiscal year 2004 budget. The final version of the RIF

called for the elimination of thirty occupied merit positions in

various County agencies. The County’s Department of Human

Resources (“HR”) implemented the RIF according to County

regulations. Specifically, HR ranked employees in each of the

affected agencies in the order of seniority. J.A. 699-701. HR

determined that it would first eliminate the positions of the least

senior employees in the affected divisions.

In May 2003, the County’s Director of HR informed Lyle that

“[b]ased on [her] agency, class, and seniority” Fairfax County was

eliminating her position with the Victim Services. J.A. 725.

However, HR offered Lyle a lateral position as a Social Worker II

in the Department of Systems Management for Human Services

(“Systems Management”). HR had determined that this lateral

position was commensurate with Lyle’s educational background and

previous work experience. Lyle accepted the Social Worker II

position with Systems Management in June 2003. J.A. 745. As a

result of this lateral transfer, Lyle maintained her previous pay

grade of S-22 and later received a pay bonus for her performance in

2003. Cubas also received a pay bonus for 2003.

7 C.

Subsequently, the plaintiffs filed complaints with the Equal

Employment Opportunity Commission (“EEOC”) alleging national origin

and gender discrimination. The EEOC denied their complaints, and

issued the plaintiffs right-to-sue letters. Thereafter, in May

2004, the plaintiffs filed a four-count complaint in the United

States District Court for the Eastern District of Virginia,

alleging discrimination on the basis of national origin;

discrimination on the basis of sex; retaliation; and failure to pay

overtime in violation of the FLSA. J.A. 11-15. Concluding that

the plaintiffs had failed to produce evidence that the defendant

had taken an adverse employment action against them, the district

court granted summary judgment to the defendant on Counts One, Two,

and Three. The district court also granted the defendant summary

judgment on the overtime claim, finding that Cubas had failed to

produce any evidence of the defendant’s failure to compensate her

for earned overtime.

II.

The plaintiffs raise three issues on appeal. First, Cubas and

Lyle assert that the district court erred in granting summary

judgment to Fairfax County on their sex and national origin

discrimination claims. Second, the plaintiffs contend that the

court erred in granting summary judgment on their retaliation

8 claim. Third, plaintiff Cubas asserts that the district court

erred in granting summary judgment to the defendant on her overtime

claim. We address each of these assignments of error in turn.

A.

The district court appropriately granted summary judgment to

the defendant on the plaintiffs’ sex and national origin

discrimination claims. This court reviews de novo an award of

summary judgment, viewing the facts and inferences drawn therefrom

in the light most favorable to the non-moving party. See Seabulk

Offshore, Ltd. v. Am. Home Assurance Co.,

, 418 (4th

Cir. 2004). Ultimately, summary judgment is appropriate “if the

pleadings, depositions, answers to interrogatories, and admissions

on file, together with 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.” Fed. R. Civ. P. 56(c);

see Celotex Corp. v. Catrett,

(1986).

Title VII makes it “an unlawful employment practice for an

employer . . . to discharge . . . or otherwise to discriminate

against any individual with respect to his compensation, terms,

conditions, or privileges of employment, because of such

individual’s race, color, religion, sex, or national origin.” 42

U.S.C. § 2000e-2(a)(1). Title VII also makes it unlawful for an

employer “to limit, segregate, or classify his employees or

9 applicants for employment in any way which would deprive or tend to

deprive any individual of employment opportunities, or otherwise

adversely affect his status as an employee, because of such

individual’s race, color, religion, sex, or national origin.” 42

U.S.C. § 2000e-2(a)(2).

A plaintiff may establish a claim for sex or national origin

discrimination via two avenues of proof. Hill v. Lockheed Martin

Logistics Mgmt., Inc.,

, 284-85 (4th Cir. 2004) (en

banc). “First a plaintiff may establish a claim of discrimination

by demonstrating through direct or circumstantial evidence that sex

. . . [or national origin] discrimination motivated the employer’s

adverse employment decision.” Id. at 284. The plaintiff “need not

demonstrate that the prohibited characteristic was the sole

motivating factor to prevail, so long as it was a motivating

factor.” Id. More commonly, a plaintiff will attempt to establish

a discrimination claim by way of the burden-shifting framework

provided by the Supreme Court in McDonnell Douglas Corp. v. Green,

(1973). Under McDonnell Douglas, the plaintiff

attempts to demonstrate, by way of circumstantial evidence, that

the employer’s proffered reason for the challenged employment

decision is pretext for discrimination.

10 The plaintiffs asserted at oral argument that direct evidence

supports their claims of sex and national origin discrimination.4

In the alternative, the plaintiffs argue that they can prove

discrimination through circumstantial evidence using the McDonnell

Douglas test. However, regardless of the method the plaintiffs

employ to prove discrimination under Title VII, they must also

prove “the existence of some adverse employment action[.]” James

v. Booz-Allen & Hamilton, Inc.,

(4th Cir. 2004)

(internal citation omitted). Accordingly, before we consider

whether the plaintiffs have established a prima facie case of

discrimination under McDonnell Douglas, we address the more

preliminary question of whether they suffered an adverse employment

action. We conclude that they did not.

“An adverse employment action is a discriminatory act which

adversely affects the terms, conditions, or benefits of the

plaintiff’s employment.” James,

(internal

quotation omitted). It is well-settled that unlawfully motivated

ultimate employment decisions--hiring, discharging, refusing to

promote, etc.-- constitute adverse employment actions, because they

have a direct impact on the terms, conditions, and benefits of

employment. However, discriminatory conduct can sometimes

4 Because there is no direct evidence in the record that the plaintiffs’ supervisors made employment decisions because they were motivated--solely, or in part--by gender or racial animus, this contention is dubious.

11 constitute an adverse employment action, even where the plaintiff

is not affected by an ultimate employment decision. Von Gunten v.

Maryland,

(4th Cir. 2001). For discriminatory

conduct that falls short of an ultimate employment decision to

qualify as such, that conduct must detrimentally impact the

material terms of the plaintiff’s present employment or her

prospect for advancement. See James,

.

It must also be remembered that the “terms, conditions, or

benefits of a person’s employment do not typically, if ever,

include general immunity from the application of basic employment

policies or exemption from [an employer’s] disciplinary

procedures.” Von Gunten,

. Further, an employer’s

act of transferring an employee to a lateral position or assigning

her less appealing work does not constitute an adverse employment

action. See James,

. Indeed, “[a]bsent 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.”

.

In this case, there is no allegation of an ultimate employment

decision. The plaintiffs, however, allege a litany of adverse

changes to the terms and conditions of their employment, which they

contend resulted from the defendant’s discriminatory animus.

12 First, Cubas and Lyle contend that Ellis assigned them heavier

caseloads than similarly situated PCII employees in Victim

Services. Second, Cubas asserts that Ellis denied her certain

training opportunities that she offered to non-Hispanic employees.

Third, Lyle points to the elimination of her PCII position and

subsequent transfer to another division. Fourth, the plaintiffs

contend that the defendant prohibited them from working overtime,

while allowing three of the ten employees in their section to work

overtime. Finally, the plaintiffs assert that the defendants’

investigation of the car accident involving the plaintiffs was

conducted in a discriminatory manner.

The above allegations do not rise to the level of adverse

employment actions under our recent decision in James. In that

case, the plaintiff, an African-American electrical engineer,

brought a discrimination suit against his employer after the

employer reassigned him to a different project.

-

74. The year after his reassignment, James received a “highly

effective” rating on his annual evaluation, a five percent salary

increase, and a $15,000 bonus.

Nevertheless, the plaintiff

alleged that the reassignment was motivated by discriminatory

animus and that as a result, he had suffered several adverse

employment actions. Among other allegations not relevant here,

James asserted that the reassignment stymied his opportunity for

promotion and development because he was not able to bill as many

13 hours as he had on the previous project.

Further, James

alleged that his employer had prevented him from attending a

training seminar that it had allowed a similarly situated white

employee to attend. Finally, James contended that his employer

denied him the opportunity to reapply for his previous position

after his successor was reassigned.

In assessing whether the above allegations constituted an

adverse employment action, the court in James recognized that the

determinative question was “whether there was a change in the terms

or conditions of [James’s] employment which had a significant

detrimental effect on his opportunities for promotion or

professional development.”

. Further, the court

concluded that only a “decrease in compensation, job title, level

of responsibility, or opportunity for promotion[]” would constitute

such a detrimental effect.

Turning to James’s specific

allegations, the court held that none of them constituted adverse

employment actions.

Central to this holding was the court’s

conclusion that even though James’s employer had reassigned him to

a more mundane project and potentially had lessened his chances for

development and promotion, “James [had] retained his position of

Senior Associate and received the same pay, benefits, and other

terms and conditions of employment.”

. The court

concluded that “an employee’s dissatisfaction with this or that

aspect of work does not mean an employer has committed an

14 actionable adverse action. And speculation about the future

adverse consequences of a reassignment may not rise to the level of

a genuine dispute.”

The plaintiffs’ allegations of increased workloads and denial

of training opportunities is conjectural, because Cubas and Lyle

have put forth no evidence demonstrating that their caseloads were

heavier relative to the caseloads of their co-workers in Victim

Services. However, even if we are to assume that the plaintiffs

had heavier caseloads, this allegation does not constitute an

adverse employment action because there is simply no evidence that

the plaintiffs suffered a decrease in compensation, job title,

level of responsibility, or opportunity for promotion. James,

. The plaintiffs’ contention that Ellis and Sommers

denied them the opportunity to work for overtime fails for the same

reason. Although a denial of overtime opportunities could

potentially inhibit an employee’s opportunities for promotion and

professional development and thereby affect her compensation, this

did not occur here. Even without additional overtime

opportunities, both plaintiffs have continued to progress, without

interruption, in terms of their salaries, pay grades, and

promotions.

The record also belies the plaintiffs’ allegation that the

defendant terminated Lyle from her position at Victim Services.

Indeed, the undisputed evidence indicates that as a result of a

15 County-wide RIF, the defendant, with Lyle’s authorization,

transferred her to the lateral position of Social Worker II in

Systems Management. This lateral position was commensurate with

Lyle’s education and previous experience, and, as a result of the

transfer, Lyle maintained her previous pay grade and later received

a raise. As this court made clear in James, “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.”

. Accordingly, Lyle’s transfer does

not constitute an adverse employment action.

Finally, the plaintiffs allege that the defendant conducted

the accident investigation in a discriminatory manner. As this

court held in Von Gunten, the terms, conditions, or benefits of

employment do not include immunity from the application of basic,

generally applicable employment policies, including routine

investigatory and disciplinary procedures.

. The

plaintiffs do not dispute that the Department routinely

investigates accidents involving County vehicles. Further,

although plaintiff Cubas ultimately received a written reprimand

for her involvement in the accident (it being her third in a County

vehicle), Cubas conceded that it was warranted given her poor

driving history. See J.A. 183-85. Thus, to the extent that the

16 accident investigation and subsequent reprimand were conducted

pursuant to routine practice and procedure, neither act constitutes

an adverse employment action. See

Because the five allegations cited by the plaintiffs in

support of their sexual and national origin discrimination claims

do not rise to the level of adverse employment actions, we affirm

the district court’s grant of summary judgment to the defendant on

those claims.

B.

The plaintiffs’ retaliation claim also fails because the

plaintiffs did not suffer an adverse employment action. To

establish a prima facie case of retaliation, an employee must show

(1) that she engaged in a protected activity; (2) that her employer

took an adverse employment action against her; and (3) that a

causal connection exists between the protected activity and the

adverse employment action. Hill, 354 F.3d at 298.

We will assume that the plaintiffs engaged in the protected

activity of lodging complaints of discrimination against Ellis and

Sommers at or about the time of the accident investigation.5

Afterwards, the plaintiffs allege that the defendants retaliated

against them in a number of ways. First, the plaintiffs contend

5 The defendant disputes the fact that the plaintiffs lodged their discrimination complaints as early as the fall of 2002.

17 that the defendants retaliated by subjecting them to an overly

vigorous accident investigation, which included invasive and

lengthy polygraph examinations. Second, Lyle contends that she

was transferred to Systems Management in retaliation for lodging

her complaint, not because of an overall RIF. Third, the

plaintiffs assert that the defendants retaliated against them by

not assigning them additional cases while the accident

investigation was ongoing. Finally, Lyle contends that Ellis gave

her an inaccurate evaluation that resulted in a “substandard

raise.”

These allegations do not rise to the level of adverse

employment actions. As explained above, the terms, conditions, or

benefits of employment do not include immunity from routine

investigatory and disciplinary procedures. See Von Gunten,

. Accordingly, the accident investigation, which was

carried out in a routine manner, does not constitute an adverse

employment action. The Police Department routinely utilizes

polygraph examinations during internal investigations, and,

accordingly, the polygraph examinations do not constitute adverse

employment actions. Moreover, it should be noted that Lyle,

herself, complained on two occasions prior to her polygraph that

she had not been afforded the opportunity of a polygraph to clear

her name. Thus, as the defendant aptly notes, it is disingenuous

18 for her now to complain that the subsequent polygraph examination

was retaliatory.

Lyle next asserts that while the Department was still

investigating her discrimination complaint against Sommers and

Ellis, Sommers took action to prevent her from regaining her

position with Victim Services. The facts belie this contention.

As a result of the passage of the County’s fiscal year 2004 budget,

HR implemented a County-wide RIF and undertook to eliminate

numerous positions in several departments. Because Lyle was the

least senior PCII at Victim Services, HR designated her position

for elimination. However, HR offered, and Lyle accepted, a

voluntary transfer to a lateral position as a Social Worker II at

the same pay grade and level of seniority. Again, because this

lateral transfer did not affect the terms, benefits, or conditions

of her employment, it did not constitute an adverse employment

action sufficient to support a retaliation claim.

The plaintiffs next contend that Ellis did not assign them any

new cases during the pendency of the accident investigation and

that Ellis under-reported the number of cases Lyle handled in 2003.

As a result, the plaintiffs assert that they each received a

“substandard raise.” Even if Ellis did not assign them new cases

during the investigation, this action was entirely appropriate

given that the investigation might have led to the termination of

these employees for false statements regarding the accident.

19 Lyle’s contention that Ellis gave her a “bad evaluation” for a

portion of 2003, causing her to receive a pay increase that was

$400 less than it otherwise would have been, is conjectural. To

the contrary, the record indicates that Ellis gave Lyle a higher

performance rating for that part of 2003 when she still worked for

her at Victim Services than Lyle’s new supervisor at Systems

Management gave her for the remainder of 2003. J.A. 325-26; 699-

701. Based partly on Ellis’s higher rating, Lyle received a three

percent pay increase in 2004. Thus, Lyle suffered no detriment to

the terms and conditions of her employment because of Ellis’s

evaluation.

In sum, the overwhelming evidence indicates that the

plaintiffs did not suffer any decrease in compensation, job title,

level of responsibility, or opportunity for promotion as the result

of their respective caseloads or annual performance evaluations.

Accordingly, these factual allegations--even accepting them as

true--do not constitute adverse employment actions and cannot

sustain a retaliation claim under Title VII. Therefore, we affirm

the district court’s grant of summary judgment to the defendant on

the plaintiffs’s retaliation claim.

C.

Although the plaintiffs asserted “hostile work environment” as

a fourth issue in their Docketing Statement, they did not list this

20 claim as a separate issue presented on appeal in their opening

brief. Further, the plaintiffs did not identify or discuss the

relevant legal standard for a formal hostile work environment claim

or apply the facts thereto. Indeed, as the defendant points out,

the phrase “hostile work environment” does not appear anywhere in

the plaintiffs’s opening brief. Nevertheless, the plaintiffs

allege several hostile acts in their brief in support of their more

general claim of sex and national origin discrimination. First,

plaintiff Cubas asserts that on one occasion, Ellis once referred

to her as “Mexican,” when, in fact, she is Columbian. On two other

occasions, Cubas alleges that Ellis stated that Cubas’s “people are

very colorful.” Cubas also contends that Ellis made derogatory

remarks about Cubas having a baby, and treated her more harshly

after she returned from maternity leave. Plaintiff Lyle contends

that Sommers made derogatory remarks about her gender.

Specifically, Lyle contends that when she mentioned to Sommers that

she had not received the computer equipment she had requested,

Sommers responded: “I won’t be the last man to lie to you.” App.’s

Br. at 7. Finally, Cubas and Lyle contend that Ellis did not allow

them to attend departmental meetings together.

Although the plaintiffs make several factual allegations of

hostile treatment in asserting their more general sex and national

origin discrimination claims, they waived consideration of a formal

hostile work environment claim by not asserting one in their

21 opening brief. Federal Rule of Appellate Procedure 28(a)(5)

requires that an appellate brief contain “a statement of the issues

presented for review.” Further, Rule 28(a)(7) requires that a

brief contain “a statement of the facts relevant to the issues

submitted for review with appropriate references to the record.”

To the extent that the plaintiffs elected not to assert and explain

the basis for a formal hostile work environment claim in their

brief, they waived consideration of this issue on appeal.6 See

11126 Baltimore Blvd. v. Prince George’s County,

, 993

n.7 (4th Cir. 1995).

D.

Finally, plaintiff Cubas asserts a claim under the FLSA,

alleging that she worked overtime hours during her lunch breaks for

which she was never paid. The FLSA establishes a forty-hour

6 Even if we were to consider a separate hostile work environment claim based on Ellis’s derogatory remarks and more hostile treatment towards Cubas after her return from maternity leave, this conduct was not “severe or pervasive enough to create an objectively hostile or abusive work environment – an environment that a reasonable person would find hostile or abusive[.]” Harris v. Forklift Sys., Inc.,

(1993). The same can be said with respect to Sommers’s allegedly derogatory remark to plaintiff Lyle. In sum, the isolated and infrequent conduct complained of by the plaintiffs, although arguably offensive, is more akin to the kind of rude and insensitive behavior that we have held is not sufficiently severe or pervasive to constitute a hostile work environment under Title VII. See, e.g., Hartsell v. Duplex Prods.,

, 773 (4th Cir. 1997) (holding that comments about plaintiff’s appearance and remarks generally demeaning to women were not sufficiently severe or pervasive).

22 workweek for covered employees and mandates compensation at time-

and-a-half for those weekly hours in excess of forty.

(a). An employee must perform forty hours of actual work in a

seven-day period before she is entitled to overtime.

To

establish a claim for unpaid overtime wages under the FLSA, the

plaintiff must establish by a preponderance of the evidence (1)

that she worked overtime hours without compensation; and (2) that

the employer knew (or should have known) that she had worked

overtime but did not compensate her for it. Davis v. Food Lion,

(4th Cir. 1986).

Although Cubas claims that she is entitled to overtime for

working through lunch on fourteen separate occasions from 2002 to

2004, the record indicates otherwise. According to Cubas’s time

and attendance sheets, she reported and was paid for three-and-a-

half hours of overtime for November 14, 2002, the first date for

which she now claims overtime. J.A. 956. With respect to seven

other occasions, Cubas did not work a required forty-hour

workweek.7

As to the remaining six occasions when Cubas

alleges to have worked overtime during her lunch break, the

evidence indicates that the plaintiff never sought prior

authorization for this work or submitted overtime vouchers after it

was completed. Thus, even if the defendant worked overtime on

7 For three of these occasions, Cubas reported several hours of sick or annual leave, or a combination of both.

23 these occasions, the defendant is not liable under the FSLA because

it did not have knowledge that Cubas had worked overtime on those

occasions. See Davis,

. Accordingly, the district

court properly granted summary judgment as to the FLSA claim.

III.

For the foregoing reasons, we affirm the judgment of the

district court.

AFFIRMED

24