Bartee v. Morris ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
CHERYL W. BARTEE,
Plaintiff-Appellant,
v.
T. NEAL MORRIS, Individually; B. C.
No. 97-1944
ELLIOTT, Individually; T. A. SMITH,
Individually; A. RAY GRIFFIN, JR.,
Individually,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Virginia, at Danville.
Jackson L. Kiser, Senior District Judge.
(CA-96-32)
Argued: January 27, 1998
Decided: May 14, 1998
Before ERVIN and MICHAEL, Circuit Judges, and
BRITT, Senior United States District Judge for the
Eastern District of North Carolina, sitting by designation.
_________________________________________________________________
Affirmed by unpublished opinion. Senior Judge Britt wrote the opin-
ion in which Judge Ervin and Judge Michael joined.
_________________________________________________________________
COUNSEL
ARGUED: Sa'ad El-Amin, EL-AMIN & CRAWFORD, Richmond,
Virginia, for Appellant. Yvonne Steenstra Wellford, MALONEY,
HUENNEKENS, PARKS, GECKER & PARSONS, P.C., Richmond,
Virginia, for Appellees. ON BRIEF: Beverly D. Crawford, EL-
AMIN & CRAWFORD, Richmond, Virginia, for Appellant.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
BRITT, Senior District Judge:
This matter is before the court on appeal of the district court's grant
of summary judgment for Defendants-Appellees. We review the grant
of summary judgment de novo. Jackson v. Kimel, 992 F.2d 1318,
1322 (4th Cir. 1993). Summary judgment is appropriate when there
is no genuine issue as to any material fact. Fed. R. Civ. P. 56(c). Once
a motion for summary judgment is properly made and supported, the
opposing party has the burden of showing that a genuine dispute
exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 586-87 (1986). Unsupported speculation is not enough to with-
stand a motion for summary judgment. Ash v. United Parcel Service,
Inc., 800 F.2d 409, 411-12 (4th Cir. 1986).
I. BACKGROUND
Plaintiff-Appellant Cheryl Bartee (Bartee) is a former detective
with the City of Danville Virginia Police Department (Department)
who was allegedly terminated from her position for violating a
Department rule. Chief of Police T. Neal Morris (Morris) hired Bartee
in 1989 and issued her commendations in 1990 and 1992. He nomi-
nated her for the Jaycees' Police Officer of the Year Award in 1993,
placed her in charge of the Department's mounted detail in 1994 and
promoted her to detective in 1994.
Bartee filed this suit on 17 June 1996 alleging violations of her
equal protection rights based on gender and her substantive due pro-
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cess rights. Specifically, Bartee claims that her termination was a
disciplinary action that was more severe than that imposed upon "sim-
ilarly situated" male officers, and that this alleged disparate treatment
denied and deprived her of her "rights, privileges or immunities
secured by federal law. . . ." (Amended Compl.¶¶ 63,67.) She later
stipulated to the dismissal of the substantive due process claim and
only the equal protection claim was before the district court.
Defendants-appellees are employees of the Department and the
City of Danville. Although the suit names four defendants, Bartee
alleged no facts and offered no evidence to demonstrate that police
officers B.C. Elliott or T.A. Smith were involved in her termination.
Therefore, the grant of summary judgement in favor of those
defendants-appellees will be affirmed without further discussion.
On 1 August 1995, Morris recommended to Danville City Manager
A. Ray Griffin (Griffin) that Bartee be terminated for violating a
Department rule of conduct prohibiting the unauthorized tape record-
ing of another person without that person's knowledge. At the time
of the recommendation, Bartee was the only officer to have ever vio-
lated this rule of conduct. Bartee testified at her deposition that she
knew that she was violating this rule at the time she tape recorded a
conversation between herself and her supervisor, T.A. Smith (Smith).
The rule Bartee violated reads:
Tape recording the conversation of another person without
informing the other party shall be a prohibited practice
unless it is in conjunction with an investigation sanctioned
by the Chief of Police or the Commonwealth's Attorney.
This applies to all persons employed by the Police Depart-
ment and covers one-on-one conversations and telephone
conversations. Violations of this rule shall be subject to
severe disciplinary action including dismissal.
Of the forty-six Department rules of conduct, only this rule and one
other expressly provide that violations will result in "severe disciplin-
ary action including dismissal." This particular rule had been in effect
since 1985, four years before the Department hired Bartee.
Bartee argues that while it is true that the Rule she violated was
one of only two which specifically provided for dismissal, Morris tes-
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tified that there were several Department rules which he considered
so serious that conduct constituting a violation of them would warrant
termination and that the absence of specific language referencing ter-
mination does not imply that a violation would not result in termina-
tion. These other rules included those concerning unbecoming
conduct, immoral conduct, insubordination, abuse of position, and
conduct toward public and Department members and employees.
In an attempt to support her claim of disparate treatment, Bartee
points to two male officers who engaged in insubordinate conduct but
were not terminated. She also proffered evidence that male officers
who were untruthful in investigations and who used excessive force
were not terminated for their conduct. Morris testified at deposition
that these actions created an unfavorable public opinion of the Depart-
ment, but that he believed them to be less serious than Bartee's
recording of her conversation with Smith.
Bartee also offered evidence of a male officer who received a
lenient disciplinary action for immoral conduct. Morris testified that
this conduct reflected badly upon the Department, but did not state
whether he considered this conduct more or less severe than that of
Bartee.
Finally, Bartee offered evidence of male officers whom she alleged
received more lenient disciplinary actions despite their repeated and
successive violations of Department policy. One officer was involved
in four incidents before being terminated for his failure to respond to
attempts to correct his performance. Another officer was repeatedly
late to work and Department training, found to have acted unprofes-
sionally to a citizen and found to have made an arrest without proba-
ble cause before he was recommended for termination. Finally,
Morris testified that one officer was late for duty or failed to report
for duty repeatedly over many months and ultimately was charged
with violating a Department rule by releasing sensitive Department
information. Morris testified that there can be instances where the
cumulative conduct of an officer can justify termination.
It is undisputed that none of the violations for which male officers
were disciplined and upon which Bartee relies to show disparate treat-
ment based on gender, involved the rule Bartee admittedly violated.
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II. DISCUSSION
For the reasons stated below, we affirm the district court's grant of
summary judgment for defendants-appellees.
Bartee's equal protection claim, that she was terminated in lieu of
a less severe punishment because she is female, must be established
through the same proof scheme used to prove claims asserted under
Title VII. Abasiekong v. City of Shelby, 744 F.2d 1055, 1058 (4th Cir.
1984). This scheme requires plaintiff to meet her burden of inten-
tional gender discrimination under the shifting proof method articu-
lated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),
and modified by this court to fit the disciplinary context in Moore v.
City of Charlotte, 754 F.2d 1100 (4th Cir.), cert. denied, 472 U.S.
1021 (1985). As Moore states, "[t]he most important variables in the
disciplinary context, and the most likely sources of different but non-
discriminatory treatment, are the nature of the offenses committed and
the nature of the punishments imposed." Id. at 1105.
Bartee has offered no direct evidence of gender discrimination, so
she must show that she "engaged in prohibited conduct similar to that
of a person of another . . . sex . . . and that disciplinary measures
enforced against [her] were more severe than those enforced against
the other person." Moore, 754 F.2d at 1105-1106.
Bartee violated a Department rule that no one else had ever vio-
lated. Further, she did not present evidence that a male employee had
violated the only other Department rule specifically warning of termi-
nation as a sanction. Bartee alludes to the disciplinary treatment of
male officers who violated other rules, yet each of these other rules
provides that a violation may subject a member of the Danville Police
Department to disciplinary action but says nothing about termination.
Morris testified at his deposition, which was filed by defendants-
appellees in support of their motion for summary judgment, that the
disciplinary action imposed for a violation of each of these rules
would depend on the circumstances. Morris further testified that there
would be no penalty short of termination for any officer violating the
rule prohibiting recording of conversations.
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Bartee has failed to produce evidence that she and any male coun-
terpart engaged in similar prohibited conduct or that any male officer
committed an offense of "comparable seriousness." As this court has
stated, to determine "comparable seriousness" it is appropriate to give
"at least initial deference to the system of offenses created by the
[employer]." Moore, 754 F.2d at 1108. The fact that some male offi-
cers were not discharged for violating other rules which provided for
varying disciplinary action, has no relevance to Bartee's prima facie
case of gender-based disparate treatment. She has simply failed to
produce facts to show that defendants-appellees engaged in "disparity
of treatment from which one could conclude that[Bartee's] discipline
was a product of discrimination." Cook v. CSX Transp. Corp., 988
F.2d 507, 512 (4th Cir. 1993).
Even assuming that Bartee established a prima facie case, she pro-
duced no evidence to rebut or prove that defendants-appellees'
offered reasons for termination were anything other than legitimate
and nondiscriminatory. See St. Mary's Honor Center v. Hicks, 509
U.S. 502, 515 (1993). All evidence presented establishes that Bartee
knowingly violated the rule against recording conversations. Morris
and Griffin testified that her admitted violation of this rule was the
reason for her termination. Bartee did not offer any evidence to refute
these statements. In her deposition she stated that she simply believed
that if she had not been female, that she would not have been termi-
nated. She cannot overcome defendants-appellees' articulated legiti-
mate reason for termination with a statement that she simply believes
that she was fired because she is female. Without facts to support this
belief and to support a connection between her gender and her termi-
nation, her claim cannot and should not survive summary judgment.
Autry v. North Carolina Dep't of Human Resources, 820 F.2d 1384,
1386 (4th Cir. 1987). Her personal opinion is simply not enough.
Yarnevic v. Brink's Inc., 102 F.3d 753, 757 (4th Cir. 1996); Goldberg
v. B. Green & Co., 836 F.2d 845, 848 (4th Cir. 1988).
The fact that Bartee received many accolades from Morris during
her six years as a Danville Police Officer, including nomination for
Police Officer of the Year, two commendations and a promotion,
make it unlikely that Morris recommended termination based upon
her gender. Amirmokri v. Baltimore Gas & Electric Co., 60 F.3d 1126(4th Cir. 1995); Tyndall v. National Educ. Ctrs. , 31 F.3d 209 (4th Cir.
6
1994). These actions create "a strong inference[that] discrimination
was not a determining factor" in Bartee's termination. Proud v. Stone,
945 F.2d 796 (4th Cir. 1991). Bartee has not refuted this inference.
III. CONCLUSION
Bartee failed to create a genuine issue of material fact as to the ulti-
mate question of whether the defendants-appellees treated her differ-
ently than a similarly situated male officer. Assuming that she could
have established a prima facie case of gender discrimination, she has
failed to carry her burden in light of the legitimate nondiscriminatory
reason for termination: her admitted violation of the Department rule
against recording conversations. Accordingly, we affirm the district
court's grant of summary judgment.
AFFIRMED
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