Lesia McCollough v. The Town of Southern Pine

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:09-cv-00192-WO-WWD. Copies to all parties and the district court/agency. [998634681]. [10-2030]

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Date Filed: 07/19/2011

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-2030

LESIA MCCOLLOUGH,
Plaintiff - Appellant,
v.
THE TOWN OF SOUTHERN PINES; JOHN LETTENEY, in his official
capacity as Chief of Police and in his individual capacity,
Defendants - Appellees,
and
REAGAN PARSONS, in his official capacity as Town Manager and
in his individual capacity,
Defendant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.
William L. Osteen,
Jr., District Judge. (1:09-cv-00192-WO-WWD)

Submitted:

June 28, 2011

Decided:

July 19, 2011

Before SHEDD, DUNCAN, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Stephen A. Boyce, STEPHEN A. BOYCE, ATTORNEY AT LAW, Greensboro,
North Carolina, for Appellant.
M. Robin Davis, JACKSON LEWIS
L.L.P., Cary, North Carolina, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

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Date Filed: 07/19/2011

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PER CURIAM:
Lesia

McCollough

appeals

the

district

court’s

order

granting summary judgment for Defendants, The Town of Southern
Pines

and

Chief

of

Police

John

Letteney,

employment discrimination action.
that

she

established

a

prima

and

dismissing

her

On appeal, McCollough argues

facie

case

of

discrimination,

specifically disparate disciplinary treatment based on sex, and
that Chief Letteney is not entitled to qualified immunity on her
42 U.S.C. § 1983 (2006) equal protection claim. 1

Finding no

error, we affirm.
We review a district court’s grant of summary judgment
de novo, “viewing the facts and the reasonable inferences drawn
therefrom in the light most favorable to the nonmoving party.”
Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008); see also
Anderson

v.

Liberty

Lobby,

Inc.,

477

U.S.

242,

255

(1986).

Summary judgment is proper “if the movant shows that there is no
genuine

dispute

as

to

any

material

fact

entitled to judgment as a matter of law.”
56(a).

and

the

movant

is

Fed. R. Civ. P.

If the moving party sufficiently supports its motion for

1

McCollough has forfeited appellate review of her remaining
claims by failing to raise them in her opening brief.
See
Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir.
1999). To the extent she seeks to raise a claim of constructive
discharge for the first time on appeal, that claim is not
properly before us. See Muth v. United States, 1 F.3d 246, 250
(4th Cir. 1993).

2

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summary

judgment,

Date Filed: 07/19/2011

the

nonmoving

Page: 3 of 5

party

must

there are genuine issues of material fact.

demonstrate

that

Emmett, 532 F.3d at

297.
Title VII of the Civil Rights Act of 1964, as amended,
prohibits “discriminat[ion] against any individual with respect
to

h[er]

compensation,

employment,

because

of

terms,
such

conditions,

individual’s

U.S.C.A. § 2000e-2(a)(1) (West 2003).

or
.

.

privileges

of

.

42

sex.”

Where there is no direct

evidence of discrimination, “a plaintiff may proceed under the
McDonnell Douglas 2 ‘pretext’ framework, under which the employee,
after

establishing

demonstrates

that

a

prima

the

facie

employer’s

case

proffered

of

discrimination,

permissible

reason

for taking an adverse employment action is actually a pretext
for discrimination.”

Diamond v. Colonial Life & Accident Ins.

Co., 416 F.3d 310, 318 (4th Cir. 2005) (internal quotation marks
and brackets omitted).
the

McDonnell

burden
Tex.

of

Douglas

persuasion

Dep’t

of

It is well established that, even under

Cmty.

burden-shifting

scheme,

remains

on

the

plaintiff

Affairs

v.

Burdine,

450

the
at

ultimate

all

U.S.

times.

248,

253

(1981).
Our review of the record leads us to conclude that
McCollough

2

failed

to

establish

a

prima

facie

case

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

3

that

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Defendants discriminated against her on the basis of sex where
none of the male comparators had engaged in similar or more
serious misconduct.

See Cook v. CSX Transp. Corp., 988 F.2d

507,

1993)

511

(4th

discriminatory

Cir.

(discussing

discipline).

prima

Likewise,

facie

we

case

conclude

of

that

McCollough has failed to demonstrate a prima facie case with
respect

to

her

§ 1983

claim

against

Chief

Letteney.

See

Holder v. City of Raleigh, 867 F.2d 823, 828 (4th Cir. 1989)
(“Our

analysis

with

respect

to

Title

VII

plaintiff’s claims under . . . [§] 1983.”).

also

governs

Because McCollough

has not asserted a viable constitutional claim against Chief
Letteney, we have no occasion to consider whether he is entitled
to assert qualified immunity as a defense.
526

U.S.

603,

609

(1999)

(“A

court

See Wilson v. Layne,

evaluating

a

claim

of

qualified immunity must first determine whether the plaintiff
has alleged the deprivation of an actual constitutional right at
all, and if so, proceed to determine whether that right was
clearly

established

at

the

time

of

the

alleged

violation.”)

(internal quotation marks omitted).
Accordingly, we affirm the judgment of the district
court.
legal

We dispense with oral argument because the facts and
contentions

are

adequately

4

presented

in

the

materials

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before

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the

court

Date Filed: 07/19/2011

and

argument

would

Page: 5 of 5

not

aid

the

decisional

process.

AFFIRMED

5