UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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, and dismissing her
employment discrimination action. On appeal, McCollough argues
that she established a prima 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 and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). 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).
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summary judgment, the nonmoving party must demonstrate that
there are genuine issues of material fact. 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, terms, conditions, or privileges of
employment, because of such individual’s . . . sex.” 42
U.S.C.A. § 2000e-2(a)(1) (West 2003). 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 a prima facie case of discrimination,
demonstrates that the employer’s proffered 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). It is well established that, even under
the McDonnell Douglas burden-shifting scheme, the ultimate
burden of persuasion remains on the plaintiff at all times.
Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253
(1981).
Our review of the record leads us to conclude that
McCollough failed to establish a prima facie case that
2
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
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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, 511 (4th Cir. 1993) (discussing prima facie case of
discriminatory discipline). Likewise, we conclude 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 also governs
plaintiff’s claims under . . . [§] 1983.”). 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. See Wilson v. Layne,
526 U.S. 603, 609 (1999) (“A court 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. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
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before the court and argument would not aid the decisional
process.
AFFIRMED
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