Isa Greene v. Randy Scott , 637 F. App'x 749 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1619
ISA P. GREENE,
Plaintiff – Appellant,
v.
RANDY SCOTT, individually and in his official capacity as
Chief of the Columbia Police Department; THE CITY OF
COLUMBIA,
Defendants - Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Joseph F. Anderson, Jr., Senior
District Judge. (3:13-cv-00567-JFA)
Submitted: January 26, 2016 Decided: February 11, 2016
Before NIEMEYER, GREGORY, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Glenn Walters, R. Bentz Kirby, Orangeburg, South Carolina, for
Appellant. W. Allen Nickles, III, NICKLES LAW FIRM, LLC,
Columbia, South Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Isa P. Greene appeals the district court’s order granting
summary judgment to Randy Scott, Chief of the Columbia, South
Carolina, Police Department, and the City of Columbia
(collectively, “Appellees”). In her 42 U.S.C. § 1983 (2012)
complaint, Greene claimed that Appellees violated her due
process rights under the Fourteenth Amendment by publicly
announcing her termination and tarnishing her reputation, thus
depriving her of the opportunity for future gainful employment.
On appeal, Greene argues that the district court wrongly
concluded (1) that Scott’s public comments were insufficient to
create an actionable level of reputational stigma, and (2) that
a news article conveying statements by the Mayor of Columbia was
inadmissible hearsay. We affirm.
We review the grant or denial of summary judgment de novo,
“drawing reasonable inferences in the light most favorable to
the non-moving party.” Butler v. Drive Auto. Indus. of Am.,
Inc., 793 F.3d 404, 407 (4th Cir. 2015) (internal quotation
marks omitted). Summary judgment is only appropriate when
“there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). “Although the court must draw all justifiable
inferences in favor of the nonmoving party, the nonmoving party
must rely on more than conclusory allegations, mere speculation,
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the building of one inference upon another, or the mere
existence of a scintilla of evidence.” Dash v. Mayweather, 731
F.3d 303, 311 (4th Cir. 2013).
Under 42 U.S.C. § 1983 (2012), Greene must show that
Appellees, “acting under color of state law,” deprived her of a
right protected by the Constitution or federal law. Wahi v.
Charleston Area Med. Ctr., Inc., 562 F.3d 599, 615 (4th Cir.
2009). While Greene, as an at-will employee, has no protected
“property” interest in her employment, Appellees “cannot deprive
[her] of [her] freedom to take advantage of other employment
opportunities.” Sciolino v. City of Newport News, 480 F.3d 642,
645 (4th Cir. 2007) (internal quotation marks omitted). Because
of this, “a Fourteenth Amendment liberty interest is implicated
by public announcement of reasons for” Greene’s discharge. Id.
at 645-46 (internal quotation marks omitted).
To survive summary judgment on her claim alleging that
Appellees violated this liberty interest, Greene must
demonstrate that Scott’s charges (1) stigmatized her reputation,
(2) “were made public by the employer,” (3) were made in
conjunction with her firing, and (4) were false. Id. at 646.
With regard to the first element, the reputational stigma must
be significant, “impl[ying] the existence of serious character
defects such as dishonesty or immorality.” Ridpath v. Bd. of
Governors Marshall Univ., 447 F.3d 292, 308 (4th Cir. 2006)
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(internal quotation marks omitted). In determining whether the
stigma created was sufficient to imply a liberty interest, we
have “distinguished statements that imply such serious character
defects from statements that simply allege ‘incompetence.’” Id.
After reviewing the record, we find no evidence of
reputational stigma sufficient to implicate a liberty interest
under the Constitution. Scott merely criticized the adequacy of
Greene’s work, and Greene admitted as much at her deposition.
This, as our previously cited precedent explains, fails to rise
to the level of constitutional concern under § 1983. Further,
because “a municipality cannot be liable in the absence of a
constitutional violation by one of its agents,” Altman v. City
of High Point, N.C., 330 F.3d 194, 207 n.10 (4th Cir. 2003)
(citing City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986)
(per curiam)), judgement in favor of the City of Columbia was
likewise proper.
We next review for abuse of discretion the admission of
hearsay evidence. United States v. Wood, 741 F.3d 417, 425 (4th
Cir. 2013). “Hearsay” is any statement that the declarant does
not make at the instant trial that “a party offers in evidence
to prove the truth of the matter asserted in the statement.”
Fed. R. Evid. 801(c). Hearsay is inadmissible except as
otherwise provided by federal rule or statute. Fed. R. Evid.
802.
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The district court properly held that the news article
offered by Greene was inadmissible hearsay. The declarant, the
article’s writer, did not attest before the district court that
the statements printed in the article actually occurred; yet
Greene attempts to offer the article as proof that the
statements were made. This is hearsay. See Nooner v. Norris,
594 F.3d 592, 603 (8th Cir. 2010) (“Newspaper articles are rank
hearsay” (internal quotation marks omitted)). Greene’s argument
that the Mayor’s statements in the newspaper article should be
admitted as a non hearsay statement by a party-opponent under
Fed. R. Evid. 801(d)(2) fails to distinguish the Mayor’s
statement, which is not hearsay, from the conveyance of that
statement in the newspaper article, which is hearsay. Id.;
Libertad v. Welch, 53 F.3d 428, 443 n.12 (1st Cir. 1995).
Therefore, the district court properly declined to consider this
evidence in assessing the summary judgment motion.
Accordingly, we affirm the district court’s order. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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