Washington v. City of Charlotte

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 05-1810

JOHN E. WASHINGTON,

Plaintiff - Appellant,

versus

CITY OF CHARLOTTE,

Defendant - Appellee.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. David C. Keesler,
Magistrate Judge. (CA-02-534-3)

Argued: September 18, 2006 Decided: February 2, 2007

Before KING, GREGORY, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion. Judge Gregory wrote a
dissenting opinion.

U. Wilfred Nwauwa, Charlotte, North Carolina, for Appellant.
Richard Harcourt Fulton, OFFICE OF THE CITY ATTORNEY, Charlotte,
North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

John E. Washington appeals from the district court’s award of

summary judgment in favor of the City of Charlotte (the “City”) in

Washington’s employment discrimination suit. Washington initiated

this action in the Western District of North Carolina on December

23, 2002, alleging that the City had contravened Title VII by

terminating him because he is African-American. Washington

contends that the court erred in its seventeen-page summary

judgment Order of June 14, 2005, in which it concluded that he had

raised no genuine issues of material fact. See Order, Washington

v. City of Charlotte, No. 3:02-cv-00534 (W.D.N.C. June 14, 2005)

(the “Opinion”). More specifically, Washington maintains that he

presented a genuine factual issue as to whether the City had failed

to terminate white employees who engaged in conduct similar to his

own. As explained below, we affirm.1

1
In addition to Washington’s assertion of a genuine question
as to whether he was treated worse than white employees in similar
circumstances, he maintains that there were two other genuine
issues of material fact: whether the City proffered legitimate,
nondiscriminatory reasons for his termination, and whether the
City’s proffered reasons for his termination were pretextual.
Because we find no merit in Washington’s first contention, we
conclude that he failed to establish a prima facie case of a
discriminatory termination, and we do not reach or address his
latter two assignments of error.

2
 I.

On April 24, 2001, Washington was terminated from his position

with the City’s Aviation Department (the “Department”), where he

had worked as a Labor Crew Chief at Charlotte Douglas International

Airport.2 According to his notice of termination, Washington was

fired for improperly appropriating City-owned landscaping stone for

personal use and engaging in conduct toward a non-supervisory

employee that was unbefitting a supervisor. The notice of

termination informed Washington that, in appropriating the stone,

he had violated Department policy on the use of City property, as

well as the general standards of conduct applicable to all City

employees. Washington admitted that he had taken the stone (using

a City-owned tractor to load it into his truck), and that he had

been involved in an argument with a non-supervisory employee.

Despite his admissions, Washington protested his firing in an

internal grievance, which he filed on May 7, 2001, asserting that

white supervisors had previously stolen from the Department or

committed more serious infractions, yet not been terminated. As

pertinent here, Washington alleged that a white supervisor named

Mike Arnold, who operated a landscaping business in addition to

having a separate job with the City, had previously appropriated

2
The factual predicate of this appeal is taken from the record
below. We construe the evidence and draw all reasonable factual
inferences in the light most favorable to Washington. See Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

3
trees delivered to the City at the Airport and used them in his

landscaping business. Washington also alleged that a white

supervisor named Elmo Langley “was not terminated for his

incident,” and that another white supervisor named Terry

Summerville “took copper to Tennessee during regular work hours but

was not terminated.” J.A. 334.3 Washington did not elaborate on

either of the latter two allegations.

In its response to Washington’s grievance, issued on May 30,

2001, the Department concluded that any trees Arnold had ordered

from the City’s vendor for use in his landscaping business had been

ordered in Arnold’s own name and paid for by him. The Department

also responded that the allegations made against Langley and

Summerville had been investigated and resolved in accordance with

applicable City policy, but that information from those

individuals’ personnel files could not be released in response to

Washington’s grievance. Finding that Washington’s termination had

been appropriate, the Department denied his grievance. Washington

appealed the Department’s ruling on the grievance to the City,

which, on January 24, 2002, upheld the denial.

On May 15, 2001, shortly after filing his grievance,

Washington also filed a Charge of Discrimination with the Equal

Employment Opportunity Commission (the “EEOC”). The EEOC

3
Citations herein to “J.A. ___” refer to the contents of the
Joint Appendix filed by the parties in this appeal.

4
investigated Washington’s allegations and, on September 20, 2002,

issued Washington a right-to-sue letter, clearing the way for him

to pursue his claim in court.

On December 23, 2002, Washington filed his Complaint in this

matter, alleging that the City had contravened Title VII by, inter

alia, “terminating plaintiff when other employees of a different

race accused or known to have violated the same or more egregious

defendant policy [sic] were not terminated.” Complaint 2 (J.A. 5).

In discovery, Washington deposed Jerry Orr, the Department

Director, regarding Arnold’s purchase of trees from the vendor used

by the Department. Orr testified that Arnold had, with the

permission and oversight of his supervisor, occasionally ordered

trees for his personal business and paid for them himself. Orr

stated that Arnold did not order trees on the City’s account or

appropriate a discount meant for the City. Washington elicited no

admissible evidence to the contrary.

Washington did not seek any discovery relating specifically to

either Summerville or Langley. In his interrogatories, however, he

requested information concerning any other employee misconduct

“involving the taking or misusing of City property.” J.A. 443.

The City’s response identified four instances of such misconduct,

describing them in general terms and withholding the names of the

employees involved. The City advised that it was “prohibited from

releasing information from personnel files of employees, except as

5
provided by NCGS § 160A-168.” Id. at 444. That notice reiterated

the City’s disclosure to Washington, made at the outset of

discovery, that employee personnel files “may be subject to various

applicable statutory protections and privacy issues, including but

not limited to NCGS § 160A-168, and it may be necessary to obtain

a Court Order to utilize these materials.” Id. at 22 (City’s Rule

26 disclosures). Washington did not pursue any such court orders.

On July 30, 2004, after discovery had been completed, the City

moved for summary judgment, pursuant to Rule 56(b), contending that

Washington had failed to forecast sufficient evidence for a

rational trier of fact to find that the Department had retained

white supervisors whose conduct was similar to his. The district

court granted summary judgment to the City by its Opinion of June

14, 2005.

Washington has appealed the district court’s award of summary

judgment on his Title VII claim, and we possess jurisdiction

pursuant to 28 U.S.C. § 1291.

II.

We review de novo a district court’s award of summary

judgment. Evans v. Techs. Applications & Serv. Co., 80 F.3d 954,

958 (4th Cir. 1996). Summary judgment is proper “if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine

6
issue as to any material fact and that the moving party is entitled

to judgment as a matter of law.” Fed. R. Civ. P. 56(c). We

construe the evidence and draw all reasonable factual inferences in

the light most favorable to the non-movant. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255 (1986).

III.

Washington contends that the district court erred in granting

summary judgment to the City because he raised a genuine issue of

material fact on whether the Department had failed to terminate

white supervisors who engaged in conduct similar to his. We find

no merit in this assignment of error, however, because Washington

did not proffer evidence sufficient for a rational trier of fact to

find in his favor.

Washington sought to establish his Title VII claim under the

familiar McDonnell Douglas burden-shifting framework. See

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

thereto, he bore the initial burden of establishing a prima facie

case of racial discrimination. See id. at 802. If he had done so,

the burden would have shifted to the City to articulate some

legitimate, nondiscriminatory reason for his termination. See id.

And, if the City had then carried its burden, Washington would have

been obliged to show that the City’s proffered nondiscriminatory

7
reason was pretextual. See id. at 804; see also Evans v. Techs.

Applications & Serv. Co., 80 F.3d 954, 959 (4th Cir. 1996).

To satisfy the first step in the McDonnell Douglas framework

— the prima facie showing — Washington was required to demonstrate

that (1) he is a member of a protected class; (2) he was qualified

for his job and his job performance was satisfactory; (3) he was

fired; and (4) other employees who were not members of the

protected class were retained under similar circumstances. See

Hughes v. Bedsole, 48 F.3d 1376, 1383 (4th Cir. 1995); see also

McDonnell Douglas, 411 U.S. at 802 & n. 13; Cook v. CSX Transp.

Corp., 988 F.2d 507, 511 (4th Cir. 1993). The City concedes that

Washington established the first three of these four prongs. On

the fourth, however, the district court concluded that Washington

had failed to raise a genuine question of fact, and that, as a

result, he was unable to make a prima facie showing of a racially

discriminatory termination. Opinion 17.

Washington disputes the district court’s conclusion, relying

on his allegations that white supervisors Arnold and Summerville

had contravened the Department’s policy on the use of City property

but were not fired.4 Unfortunately, Washington’s assertions are

4
In seeking to properly support his disparate treatment claim,
Washington also submitted affidavits from two coworkers alleging
that Arnold had engaged in misconduct other than the theft of City
property: directing subordinates to perform work for his personal
benefit while on City time. Washington did not, however, forecast
evidence that would sustain a finding that management had been made
aware of such allegations, and thus failed to link them to his

8
not supported by the record. It is well established that a summary

judgment motion cannot be successfully opposed by unsubstantiated

allegations; rather, the non-moving party is obliged to “go beyond

the pleadings and by her own affidavits, or by the ‘depositions,

answers to interrogatories, and admissions on file,’ designate

‘specific facts showing that there is a genuine issue for trial.’”

Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quoting Rule

56(c)). On this record, as the court ruled, Washington failed to

satisfy that burden. With regard to Arnold’s alleged misconduct,

the only evidence of record cognizable under Rule 56(c) is

Department Director Orr’s deposition testimony. Orr testified that

Arnold sometimes ordered trees from the City’s vendor, but did so

in his own name, with his own money, and with the permission and

oversight of his supervisor. J.A. 257, 273. That evidence, of

course, contradicts Washington’s allegations.

Washington alleges that Arnold actually ordered the trees for

his personal business using the City’s account, and without his

supervisor’s permission. His sole evidence on this point, however,

is a document of unknown authorship, purporting to summarize an

interview with Don Hicks, Arnold’s supervisor. See J.A. 428.

(Washington maintains that the document was prepared in the course

of the EEOC investigation.) In addition to being anonymous, of

course, this document is unsworn. And it is clear that unsworn,

disparate treatment claim.

9
unauthenticated documents — let alone anonymous ones — cannot be

considered in connection with a motion for summary judgment. Orsi

v. Kirkwood, 999 F.2d 86, 92 (4th Cir. 1993). Washington’s

contention regarding Arnold is thus supported by bare allegations

only, which are directly contradicted by Orr’s deposition

testimony. Such allegations do not constitute evidence from which

a reasonable trier of fact could find in Washington’s favor.

Washington’s allegations regarding Summerville likewise lack

evidentiary support. Washington asserts, however, that this

absence of evidence is due to the City’s refusal to release

information from Summerville’s personnel file. During discovery,

the City explained to Washington that employee personnel files are

protected from disclosure by N.C. Gen. Stat. § 160A-168, and that

“it may be necessary to obtain a Court Order to utilize these

materials.” J.A. 22 (City’s Rule 26 disclosures); see also J.A.

444 (City’s response to Washington’s interrogatories). As the City

points out, the pertinent statutory provision generally prohibits

the disclosure of information from the personnel file of a city

employee. See N.C. Gen. Stat. § 160A-168(c). Such information may

be disclosed, however, as the statute specifies, upon order of a

court of competent jurisdiction. See id. § 160A-168(c)(4).

Washington does not assert that he ever sought such an order, even

though the City expressly advised him of his need to do so.

10
Consequently, there is no evidence of record supporting

Washington’s allegation regarding Summerville.

In these circumstances, the district court correctly concluded

that Washington was unable to show any genuine factual question as

to whether white supervisors had been retained by the City under

circumstances similar to his. See Opinion 17. Washington thus

failed to establish a prima facie case of a discriminatory

termination under Title VII, and the court properly awarded summary

judgment to the City. See Bryant v. Bell Atl. Md., Inc., 288 F.3d

124, 135 (4th Cir. 2002) (affirming summary judgment against Title

VII plaintiff because he failed to establish prima facie case).

IV.

Pursuant to the foregoing, we reject Washington’s contention

of error and affirm the district court’s award of summary judgment

to the City.

AFFIRMED

11
GREGORY, Circuit Judge, dissenting:

Contrary to the majority, I believe that the evidence, when

viewed, as it must be, in the light most favorable to the

plaintiff, is sufficient to create a genuine issue of material fact

as to whether the City of Charlotte (“the City”) failed to

terminate white supervisors similarly situated to John E.

Washington (“Washington”). I also believe that the evidence, again

viewed in the light most favorable to the plaintiff, is sufficient

to show that the City’s proffered reasons for firing Washington

were pretext for discrimination. Accordingly, I respectfully

dissent.

I.

Following are the facts set forth in the light most favorable

to Washington, the non-movant in the summary judgment proceedings

below. Washington, an African American, was employed for nearly

seventeen years with the City. He began his employment in 1984 as

a temporary sanitation worker. He soon transferred to the City’s

Aviation Department (“the Department”) as an airport shuttle bus

operator and eventually worked his way up to the supervisory

position of labor crew chief in the Department’s field maintenance

unit.

Washington testified that he was not permitted to supervise

white employees in the same manner as he supervised black

12
employees. He was once called to the Human Resources Department,

for example, because he gave a white subordinate a “meet basic”

rating. The human resources office forced Washington to provide

paperwork justifying his rating, and the white employee was later

moved to a work crew with a white supervisor. Although Washington

had given that same rating to black subordinates many times, he had

never been summoned by the human resources office and made to

explain his evaluation.

Washington further testified that his supervisor Don Hicks

(“Hicks”), who is black, was not supportive when Washington tried

to discipline white employees. When Washington complained to Hicks

about white employees’ misconduct, nothing happened. Washington

believed that Hicks “was put there to keep people from saying

discrimination.” J.A. 64. In addition, according to Washington,

Hicks began his meetings by announcing that he was “the head nigger

in charge.” J.A. 65.

On April 21, 2001, Washington and Jeff Tucker (“Tucker”), a

white employee who worked in the landscaping unit, had a verbal

exchange, the end of which Hicks witnessed. When Hicks called the

men into his office to discuss the matter, Washington told Hicks

that the exchange was about Tucker’s threat to disclose that

Washington had taken some brick pavers for personal use.

Washington then admitted that he had taken some brick pavers,

valued at fifteen dollars. Hicks reported the incident to the

13
Human Resources Department, after which Washington was terminated

for (1) violating a policy that prohibits the personal use of City

property, regardless of value, and (2) exhibiting “conduct towards

a non-supervisory employee [that] was unbefitting a supervisor and

interpreted as intimidating and a misuse of authority.” J.A. 331.

Washington filed a grievance with the City Human Resources

Department, claiming that white employees had taken City property

without being fired and denying that he threatened Tucker.

Washington wrote (and later testified) that Hicks was aware of the

“common practice for employees to take stones, pavers, or other

supplies,” told Washington that he could take pavers when no one

was around, and failed to stop Washington when Hicks saw him headed

toward home with a load of stones. J.A. 333. Washington also

cited several examples of white supervisors being given more

freedom than black supervisors to take City property, make personal

use of City equipment, and participate in hiring selection. Among

other names, Washington mentioned Mike Arnold (“Arnold”), a white

supervisor responsible for ordering supplies for the City.

According to Washington, Arnold ordered extra supplies for his home

and used the labor of other employees to complete tasks at the

airport for his personal business. Washington concluded the

grievance by observing that white employees who committed

infractions similar to his were rarely disciplined, much less

terminated.

14
 The City determined that there was no disparate treatment and

sustained Washington’s dismissal. He subsequently filed a charge

of racial discrimination with the Equal Employment Opportunity

Commission (“EEOC”). Thereafter, he filed suit in federal district

court where the magistrate judge, exercising jurisdiction with the

parties’ consent, granted summary judgment in favor of the City.

This appeal followed.

II.

As the majority has explained, Washington has chosen to avail

himself of the familiar burden-shifting framework announced in

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

framework, in order to establish a prima facie case of

discrimination in the enforcement of employee disciplinary

measures, the plaintiff must show that (1) he is a member of a

protected group; (2) he was qualified for his job and his

performance was satisfactory; (3) he was terminated; and (4) other

employees who were not members of the protected group were retained

under apparently similar circumstances. Bryant v. Bell Atl. Md.,

Inc., 288 F.3d 124, 133 (4th Cir. 2002).

If the plaintiff sets forth a prima facie case, the defendant

must rebut the presumption of discrimination established by the

prima facie case by advancing a legitimate, nondiscriminatory

reason for the employment decision. The plaintiff must then

15
demonstrate that the defendant’s proffered reason is mere pretext

for discrimination. Tex. Dep’t of Cmty. Affairs v. Burdine, 450

U.S. 248, 255-56 (1981). The plaintiff may do this by showing that

the proffered reason is false: “In appropriate circumstances, the

trier of fact can reasonably infer from the falsity of the

explanation that the employer is dissembling to cover up a

discriminatory purpose.” Reeves v. Sanderson Plumbing Prods.,

Inc., 530 U.S. 133, 147 (2000). Indeed, “once the employer’s

justification has been eliminated, discrimination may well be the

most likely alternative explanation, especially since the employer

is in the best position to put forth the actual reason for its

decision.” Id.

III.

It is undisputed that Washington is a member of a protected

group, was qualified for his job and had been performing

satisfactorily,1 and was terminated. The majority has concluded

that Washington cannot, however, satisfy the fourth element of his

prima facie case. In other words, he has not shown an issue of

fact as to whether the City retained white supervisors under

circumstances similar to his. In my view, not only has Washington

1
On performance reviews completed between 1997 and 2000, Hicks
consistently gave Washington a “G” rating, indicating that
Washington had met, and periodically exceeded, the requirements of
his position. There is no evidence that Washington had any
previous infractions or disciplinary problems.

16
made out all four elements of his prima facie case, he has also

demonstrated an issue of material fact as to whether the City’s

stated reasons for terminating him are pretext for discrimination.

A.

According to the majority, the record does not support

Washington’s allegation that a white supervisor, Arnold,

contravened the Department’s policy on the use of City property but

was not fired. In reaching this conclusion, the majority limits

its analysis to the issue of whether, and to what degree, Arnold

used the City account to order trees for his personal use. The

only evidence regarding this alleged misconduct, the majority

notes, is the deposition testimony of Jerry Orr (“Orr”), Director

of the Aviation Department, which contradicts Washington’s

allegations.

In my view, Arnold is in fact similarly situated to Washington

(in that Arnold violated Department policy), but not because of the

alleged misconduct that the majority discusses. Rather, the record

supports Washington’s allegation that Arnold used City supplies,

equipment, and labor for his personal gain, unrelated to or

notwithstanding his use of the City account to order trees. The

affidavits of Shawn Jordans (“Jordans”) and Luke Berry (“Berry”),

17
which the majority briefly references in a footnote, attest to this

fact.2

The first affiant, Jordans, worked for Arnold in the

Department’s landscaping unit. Jordans testified that one of

Arnold’s assistant supervisors “personally ordered” him “to fill

[Arnold’s] personal truck with mulch.” J.A. 433. Jordans refused,

he recalled, “because [he] did not want to take part in stealing.”

Id. He was then “written up” by Arnold for insubordination. Id.

He did not report the matter to Hicks, Arnold’s supervisor, for

fear of losing his job: He “personally knew and it was also . . .

general knowledge that Don Hicks, the manager, would side with Mike

Arnold, whether or not Mike Arnold did right or wrong.” J.A. 433-

34. Jordans further testified:

I personally knew and it was not a secret that Mike
Arnold was using certain of the landscaping crew members
to perform his landscaping business on the City time.
Todd McCall was openly bragging to me how he was getting
paid twice, one from the City and another from Mike
Arnold for the side landscaping job he performed for Mike
Arnold. Todd McCall’s own words were “you can’t beat
that.”

J.A. 434.

The second affiant, Berry, worked in the landscaping unit

under Arnold’s supervision before transferring to the field

maintenance unit under Washington’s supervision. Berry testified,

“I personally know that Mike Arnold was doing his landscaping

2
The magistrate judge considered both affidavits in deciding
the motion for summary judgment.

18
business on the City time because Mike Arnold . . . had me cut

grass for him at West Boulevard on City time and he was paid for

the job . . . .” J.A. 436.

These affidavits, made on personal knowledge, see Fed. R. Civ.

P. 56(e), unambiguously support Washington’s allegations that white

supervisors (or Arnold, in very the least) contravened Department

policy without being disciplined. The policy states that “[t]he

use of City vehicles, equipment, supplies and property is for

official City or Aviation Department work only and is strictly

forbidden to be used for personal gain.” J.A. 346. Moreover, Orr,

on whose deposition testimony the majority relies, clarified what

his Department would consider a violation of the policy. When

asked whether employees’ use of airport supplies in running their

side businesses would be a violation of Department policy, Orr

answered yes. J.A. 247. When discussing Arnold’s practice of

ordering trees for personal use at the same time he ordered trees

for the City and having both sets of trees delivered to the

airport, Orr stated that “[i]t would not be a violation of [the

policy] if [Arnold] ordered something for his personal use, paid

for it for his personal use, and didn’t—didn’t use City equipment

in the process.” J.A. 251. Orr did not “see any conflict of

interest as long as [there is] a separation, as long as [an

employee] doesn’t use City equipment in the process.” J.A. 253.

19
Finally, Orr testified that the use of City crew on City time for

non-City tasks would violate the rules. J.A. 254.

Orr’s testimony, if not the letter of the policy alone, makes

clear that using City equipment, City supplies, City time, or City

labor for personal gain constitutes a violation of the Department’s

policy. The affidavits of Jordans and Berry, then, create a

factual issue as to whether Arnold used City supplies (i.e.,

mulch), labor (i.e., the landscaping crew), and time (i.e., to cut

grass and perform other landscaping jobs for private clients) in

contravention of this policy. It was error for the magistrate

judge, fully aware of the affiants’ statements, to contradict that

which the Department representative himself stated was Department

policy, to ignore the breadth of Washington, Jordans, and Berry’s

allegations by concentrating only on the issue of whether Arnold

impermissibly used the City account, and to find that “it is

impossible to conclude that Mr. Arnold misappropriated City

property.” J.A. 485.

The magistrate judge also surmised that, even if Arnold

violated Department policy, perhaps Hicks and his immediate

supervisor, George Robinette (“Robinette”), did not know and

therefore should not be liable for failing to take action. The

majority adopts this view as well. We can infer from the

circumstantial evidence in the record, however, that Arnold’s

superiors had some knowledge about his activities yet failed to

20
discipline him. As Jordans testified, “it was not a secret” that

Arnold used the City crew to perform his side jobs on City time.

J.A. 434. Likewise, Jordans testified that Hicks’s unfailing

support of Arnold’s activities, both right and wrong, was general

knowledge. This testimony corroborates Washington’s allegations

about Hicks’s support of Arnold and Hicks’s refusal to act on

Arnold’s misappropriation of City property. We may also infer from

the fact, as described by Jordans and Berry, that Arnold had

subordinates participate in his misappropriation of City property,

that his activities were widely known. Finally, Orr testified that

he knew Arnold had trees ordered for personal use delivered to the

airport. Despite Orr’s denials (discussed below), we may infer

from this knowledge that Arnold’s superiors knew, at some point,

that Arnold would need City equipment or labor to assist him in

handling those trees.

Orr’s testimony, on which the majority rests its entire

analysis regarding Arnold’s misconduct, in fact creates a genuine

issue as to whether Arnold used City equipment and labor in

handling the trees delivered to him at the airport. These trees,

even if paid for by Arnold for his personal use, did not exit the

delivery truck without assistance. When asked whether Arnold used

the City crew to load the trees onto Arnold’s personal truck, Orr

initially answered no, but admitted shortly thereafter that he does

not know, as he has 250 employees and simply trusts supervisors to

21
“know the rules, and . . . do what they’re supposed to do.” J.A.

254. Orr did not know precisely how trees delivered to Arnold at

the airport got off of the delivery truck—that is, whether they

were loaded directly into Arnold’s truck or deposited on the ground

first. Nor could Orr confirm that none of the items delivered to

the airport in Arnold’s name actually belonged to the City.

Indeed, Arnold’s duties included both ordering supplies for the

City and accounting for the items’ actual delivery and usage. Of

this system with minimal oversight for Arnold’s actions, Orr

conceded, “if the information [is] tainted at the input level, it

would be tainted at the output level.” J.A. 250.3

Orr supplied a single reason for his firm belief that Arnold

never misappropriated City property or City time. According to

Orr, Hicks and Robinette investigated allegations of Arnold’s

misconduct and determined that the allegations lacked merit. Orr

could not recall any details of the investigation, but maintained

that “[Hicks and Robinette’s] explanation was satisfactory at the

time.” J.A. 248. Thus, Orr derived his confidence in Arnold’s

3
Jordans, meanwhile, testified:
I personally know that when supplies, such as
trees, shrubs and flowers arrives [sic] from
the suppliers, no separations were made as to
the City owned and personally owned, but I
noticed that next morning [sic], half of the
supplies would be gone and the backhoe would
be gone as well, and yet not [sic] city job
was done with the supplies.
J.A. 433.

22
conformity with the rules from a hazily recalled investigation in

which Hicks was involved and about which Orr lacks personal

knowledge. The majority would seem to find Orr’s testimony about

the “investigation” admissible, and would seem to consider the

testimony support for the ultimate proposition that no rational

finder of fact could conclude that Arnold misappropriated City

property. I cannot agree with this. Quite tellingly, the one

person who is knowledgeable about whether Arnold’s activities

conformed with Department policy, Hicks, has not testified in this

matter. Without Hicks’s testimony, the record is bereft of

evidence that Hicks or anyone else had personal knowledge that

Arnold’s practices did not violate Department policy.4

In sum, because the record contains evidence that Arnold used

City supplies, equipment, labor, and time for personal gain, in

violation of Department policy, Washington has created a genuine

issue as to whether the City retained similarly situated white

supervisors but not him. He has therefore made out a prima facie

case of discrimination.

4
I agree with my good colleagues that, in deciding a motion
for summary judgment, this Court should not consider unsworn,
unauthenticated documents such as the document Washington maintains
is a summary of the EEOC’s interview with Hicks.

23
 B.

Having found the opposite, the majority does not reach the

issue of pretext. I, however, believe that the evidence of record

(and, in some instances, the lack of evidence) supports a showing

by Washington that the City’s proffered reasons for his termination

are mere pretext for discrimination.

Washington has presented sufficient evidence at this stage for

a rational jury to conclude that the City’s first reason for his

termination, his theft of fifteen dollars’ worth of brick pavers,

is unworthy of credence. Cf. Burdine, 450 U.S. at 256. Among

other things, Washington’s and Jordans’s testimony indicates that

Hicks turned a blind eye to Arnold’s misdeeds; their testimony and

Berry’s testimony establish an atmosphere that, contrary to what

Washington’s swift termination suggests, tolerated and even

encouraged employees’ personal use of City property; and the

recommendation to terminate Washington came from Hicks who, along

with Arnold, the record shows, consistently dismissed each of

Washington’s many complaints about the workplace.

There is simply no evidence to support the City’s second

reason for terminating Washington. First, Washington denied

threatening or intimidating Tucker. Washington described their

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“verbal confrontation,” J.A. 97, at his deposition. The account is

the only description of the exchange in the record:5

I guess it was Monday, when I came in. My crew was
out on the expressway picking up. I had to go back for
something. And as I went to pull in, Jeff Tucker was
coming out and–

. . .

And I said, let me speak to you for a minute, you
know. I was just like that, let me speak to you for a
minute. [Tucker replied] No! No! I ain’t whatever, or
something, you know, whatever.

And then I said, okay. I said, okay, from now on you
do like the rest of them. If you’ve got something to
say, just say it behind my back and leave me alone.

Okay, he was walking on past. And then he came back
to my truck. I guess he seen that I wasn’t going to fall
into a trap, or something. He came back to my truck,
where I was in the door, and then he started an argument
with me.

Then I was still in the door, mind you, or whatever,
and then he said something about telling [Hicks]. And I
said, well, tell [Hicks].

And we proceeded to go up the steps, and stuff like,
and that is when [Hicks] told me to stay in the lobby
upstairs, and he took [Tucker] down to his office. And
I was waiting.

J.A. 89-90.

5
Again, I agree with my good colleagues that we cannot
consider the anonymous, unsworn, unauthenticated summary of the
EEOC’s interview with Hicks, during which Hicks is supposed to have
said that he did not witness any confrontation between Washington
and Tucker, but heard from his secretary that the men, as the
author of the summary phrased it, “were arguing and about to
fight.” J.A. 500.

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 Washington testified that he never threatened anyone he worked

with, much less a subordinate or Tucker, who did not report to

Washington. Washington also noted that Tucker has a six-foot-one,

four hundred-pound frame that exceeds Washington’s five-foot-

eleven, admittedly “oversized” frame, and that he would not have

threatened Tucker because he knew he “[wasn’t] going to win” a

workplace altercation with a white employee given what he perceived

as the bias in favor of white employees in his workplace. J.A. 98.

Importantly, no evidence of record contradicts Washington’s denial.

Second, Tucker never said that Washington threatened or

intimidated him. The City has not pointed to any such statement,

or reference to such statement, in the record. To the contrary,

the record contains evidence that Tucker was the workplace bully,

not Washington. The record contains Berry’s testimony that Tucker

harassed and threatened him, and Washington’s written complaints to

management about Tucker’s abuse of employees.

Third, Hicks, who reported Washington’s alleged misuse of

authority to the Human Resources Department, saw only a portion of

the verbal exchange and merely observed that Washington “was doing

most of the talking.” J.A. 349. How, on this record, the mere act

of getting into an argument or, worse, simply “doing most of the

talking” in an exchange translates into affirmative evidence that

a supervisor abused his authority and exhibited conduct

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interpreted6 as intimidating escapes me. In drawing this

conclusion, the magistrate judge failed to view the evidence in the

light most favorable to Washington and, therefore, did not properly

consider the inferences that could lead a reasonable jury to find

that the City’s justification for terminating Washington was

pretext for racial discrimination. The majority errs in leaving

the magistrate judge’s conclusion undisturbed.

IV.

On motion for summary judgment, we must construe the evidence

and draw all reasonable factual inferences in the light most

favorable to the non-movant. It is difficult, if not impossible,

to follow this mandate without considering the affidavits of

Jordans and Berry and the fact that the City has yet to establish

the charge that Washington intimidated an employee. Relying only

on the testimony of Orr, who had no personal knowledge of the

events in question and whose testimony cannot overcome the absence

of testimony by Hicks, compounds this problem.

Washington has presented sufficient evidence, when viewed in

the light most favorable to him, to satisfy the fourth element of

his prima facie case (which is not an “onerous” burden, see

Burdine, 450 U.S. at 253) and to permit a reasonable trier of fact

6
By whom, one might ask, as the record is also unclear as to
who interpreted Washington’s discourse as intimidating.

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to conclude that the City’s stated reasons for terminating him are

pretext for racial discrimination. For this reason, I respectfully

dissent.

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