Hunter v. Prince George's County , 36 F. App'x 103 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ANDRE B. HUNTER; PAULETTE I. 
HUNTER,
Plaintiffs-Appellants,
v.
PRINCE GEORGE’S COUNTY,
MARYLAND; RON HASSAN,
individually and as Battalion Chief
of Prince George’s County
Maryland’s Fire Department; JOHN
FLETCHER, individually and as
Assistant Battalion Chief of Prince
George’s County Maryland’s Fire
Department; TERRY LLOYD,  No. 01-1318
individually and as Captain in the
Prince George’s County Maryland’s
Fire Department,
Defendants-Appellees,
and
COUNTY EXECUTIVE AND COUNTY
COMMISSIONERS OF PRINCE GEORGE’S
COUNTY; PRINCE GEORGE’S COUNTY
FIRE DEPARTMENT; RITCHIE
VOLUNTEER FIRE COMPANY,
INCORPORATED,
Defendants.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Deborah K. Chasanow, District Judge.
(CA-98-2434-DKC)
2 HUNTER v. PRINCE GEORGE’S COUNTY
Argued: April 2, 2002
Decided: June 4, 2002
Before WILKINS, TRAXLER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Maury S. Epner, MILLER, MILLER & CANBY, Rock-
ville, Maryland, for Appellants. Rhonda Lee Weaver, Associate
County Attorney, Upper Marlboro, Maryland, for Appellees. ON
BRIEF: Sean D. Wallace, County Attorney, Upper Marlboro, Mary-
land, for Appellees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Andre Hunter and his wife appeal from the district court’s grant of
summary judgment against their claims of employment discrimination
and various civil rights violations. We affirm.
I.
Andre Hunter, an African-American, worked as a firefighter for
Prince George’s County, Maryland. In April or May 1996, Hunter
was transferred to the Central Communications Facility ("CCF") on
HUNTER v. PRINCE GEORGE’S COUNTY 3
a light-duty assignment after injuring his ankle. His supervisors there
were Captain Theresa Lloyd, Battalion Chief Ronald Hassan, and
Major John Fletcher.
In July 1996, Hunter was charged with being unfit for duty after
a positive breath-alcohol test. Hunter thereafter requested and
received a short-term transfer to another light duty assignment. In late
July, Hunter returned to the CCF building to clean out his locker. Two
police officers, who mistakenly believed that Hunter had been sus-
pended and was not allowed in the building, confronted Hunter and
told him to leave the building immediately. As Hunter began to drive
away from the building in the fire department vehicle that had previ-
ously been assigned to him, other police officers ordered him to stop
and asked whether he had stolen the car. After a few minutes, Hunter
was allowed to leave. Hunter was later charged with attempting to
bribe the officer who performed the breath-alcohol test. He was
cleared of that charge and of the unfit-for-duty charge.
Thereafter, Hunter filed racial discrimination charges with the fire
department’s Equal Opportunity Officer and with the Equal Employ-
ment Opportunity Commission. A fire department investigator looked
into Hunter’s claims and issued a report (the "EEO report") conclud-
ing that Lloyd, Hassan, and Fletcher discriminated against Hunter
because of his race.
In 1998, Hunter filed a complaint in federal district court alleging
claims of racial discrimination and harassment. The complaint incor-
porated the allegations and conclusions of the EEO report, and a copy
of the report was attached as an exhibit to the complaint. Hunter later
received permission to file an amended complaint. The amended com-
plaint added Hunter’s wife as a plaintiff and asserted claims under
Title VII and 42 U.S.C.A. §§ 1981, 1983, and 1985(3) against various
defendants, including Hassan, Fletcher, and Lloyd. The amended
complaint referred to the investigation of Hunter’s discrimination
claims by the fire department’s Equal Employment Office, but the
complaint did not incorporate the findings of the EEO report, nor was
the EEO report attached to the amended complaint.
After some defendants and claims were dismissed by stipulation
and by the district court, the remaining defendants moved for sum-
4 HUNTER v. PRINCE GEORGE’S COUNTY
mary judgment on the remaining claims. The Hunters’ opposition to
the summary judgment motion consisted of a legal memorandum that
included a "verified statement of facts" sworn to by Andre Hunter,
J.A. 230-33, but the Hunters otherwise presented no affidavits, depo-
sitions, or other evidence to support their claim that summary judg-
ment was improper. The Hunters’ memorandum referred to the EEO
report and its finding that Andre Hunter had been discriminated
against because of his race, but the report was not attached as an
exhibit to the memorandum. Nothing in the memorandum indicated
that the EEO report had been attached as an exhibit to the original
complaint.
The district court granted summary judgment in favor of the defen-
dants. In the summary judgment order, the district court noted the
Hunters’ reliance on the finding of discrimination contained in the
EEO report. The court, however, did not consider that finding because
the Hunters had "not provided the court with a copy of the report" and
the court had "no way to gage how probative the report’s findings are
of discrimination." J.A. 297.
II.
The Hunters’ sole argument on appeal centers on the district
court’s failure to consider the EEO report. The Hunters contend that
because the EEO report was attached to the original complaint, it was
part of the record before the district court, and the district court there-
fore should have considered it. The Hunters (now represented by new
counsel) place much of the blame on their trial attorney, who failed
to include the EEO report with his summary judgment opposition and
failed to tell the district court that the report was attached to the origi-
nal complaint. Despite this oversight by their previous attorney, the
Hunters nonetheless insist that the court erred by failing to consider
the report, which they contend sufficiently contradicted the evidence
submitted by the defendants to render improper the grant of summary
judgment.
The defendants, however, contend that the original complaint
became inoperative once the amended complaint was filed. Because
the EEO report was attached only to the original complaint, but not
the amended complaint, the defendants argue that the report was no
HUNTER v. PRINCE GEORGE’S COUNTY 5
longer a part of the record once the amended complaint was filed. See
Young v. City of Mount Ranier, 238 F.3d 567, 572 (4th Cir. 2001)
("As a general rule, an amended pleading ordinarily supersedes the
original and renders it of no legal effect." (internal quotation marks
omitted)). The defendants therefore contend that it was proper for the
district court to make its summary judgment determination on the
record before it, which did not include the EEO report.
We need not decide whether the district court had an obligation to
locate and consider a document that appeared only as an attachment
to a pleading that had been rendered of no legal effect by an amended
pleading. Even assuming that the district court in this case should
have located and considered the EEO report, we conclude, as we
explain below, that the report presents no obstacle to the granting of
summary judgment. See, e.g., Jackson v. Kimel, 992 F.2d 1318, 1322
(4th Cir. 1993) (explaining that this court "can affirm on any legal
ground supported by the record and [is] not limited to the grounds
relied on by the district court").
Only evidence that would be admissible at trial may be considered
for summary judgment purposes. See, e.g., Maryland Highways Con-
tractors Ass’n v. Maryland, 933 F.2d 1246, 1251 (4th Cir. 1991)
("[H]earsay evidence, which is inadmissible at trial, cannot be consid-
ered on a motion for summary judgment."). Although we harbor some
doubt, we will assume that the EEO report would be admissible at
trial under the public records exception to the hearsay rule. See Fed.
R. Evid. 803(8)(C) (declaring admissible "reports . . . of public offices
or agencies, setting forth . . . factual findings resulting from an inves-
tigation made pursuant to authority granted by law, unless the sources
of information or other circumstances indicate lack of trustworthi-
ness"). Nonetheless, we do not believe that the EEO report creates
any genuine issues of material fact.
In Goldberg v. B. Green & Co., 836 F.2d 845 (4th Cir. 1988), this
court concluded that an EEOC report finding probable cause that age
discrimination had occurred did not render the granting of summary
judgment improper:
[T]he Commission’s findings are not sufficiently probative
to create a genuine issue of material fact about [the employ-
6 HUNTER v. PRINCE GEORGE’S COUNTY
er’s] intent to discriminate on the basis of age. The Commis-
sion’s report merely repeats facts which [the plaintiff]
himself alleges elsewhere in this case, and then states in
conclusory fashion that those facts reflect age discrimina-
tion. Such findings, standing alone, are not enough to sal-
vage [the plaintiff’s] claim.
Id. at 848.
The EEO report in this case is similarly deficient. The report
largely repeats the allegations made by Hunter and asserts that "[t]he
preponderance of the evidence supports the charge of racial discrimi-
nation" made by Hunter. J.A. 23. But there is nothing in the report to
support the bare conclusion that the defendants’ actions were because
of Hunter’s race. The report does not suggest that white employees
in similar circumstances were treated more favorably than Hunter, nor
does the report even suggest the existence of any direct evidence of
discriminatory intent by the defendants. Instead, the report seems to
simply assume that because Hunter is black, the actions taken against
him must have been because of his race, without recounting any facts
that could support such an inference. Goldberg makes clear that these
sorts of unsupported conclusions are insufficient to stave off summary
judgment.*
*At oral argument, counsel for the Hunters suggested that we should
assume that a sufficient factual basis existed for the conclusions in the
EEO report because the report states that the investigator interviewed the
parties and reviewed "[w]ritten statements, records, and logs." J.A. 19.
We disagree. The statements in the EEO report are no less conclusory
simply because the report asserts that an investigation was performed;
what makes the statements conclusory is the absence in the report of any
facts to support the ultimate conclusion that Hunter was discriminated
against because of his race. The EEO report is no more probative than
is a plaintiff’s conclusory affidavit stating that he has been illegally dis-
criminated against, which this court consistently finds inadequate to
create genuine issues of material fact. See, e.g., Causey v. Balog, 162
F.3d 795, 802 (4th Cir. 1998) (affirming grant of summary judgment
because the plaintiff’s "conclusory statements, without specific evidenti-
ary support" were insufficient to create a genuine issue of fact); see also
Evans v. Technologies Applications & Serv. Co., 80 F.3d 954, 962 (4th
HUNTER v. PRINCE GEORGE’S COUNTY 7
III.
As noted above, the Hunters’ sole claim on appeal is that the dis-
trict court erred by failing to consider the EEO report; they do not
(and could not) contend that the grant of summary judgment was
improper even without the EEO report. Because the EEO report fails
to create any genuine issues of material fact, any error by the district
court in failing to locate and consider the report is harmless. Accord-
ingly, the decision of the district court is hereby affirmed.
AFFIRMED
Cir. 1996). Had the Hunters submitted to the district court, for example,
an affidavit from the investigator that set out the facts upon which the
investigator’s conclusions were based, that affidavit might have been suf-
ficient to prevent the granting of summary judgment. But, despite ample
time for discovery, the Hunters submitted no evidence (other than Andre
Hunter’s "verified" facts included in the memorandum) in opposition to
the summary judgment motion. It is far too late for the Hunters to sug-
gest that we should assume that evidence exists to support their claims;
it was the Hunters’ obligation to locate and present any such evidence in
a timely manner.