Childress v. City of Richmond

Affirmed by published per curiam opinion. Judge LUTTIG wrote a concurring opinion, in which Judge WILKINS and Judge WILLIAMS joined.

OPINION

PER CURIAM:

This is an appeal by seven white male police officers from successive orders of the *1207district court that dismissed on various grounds their action alleging “hostile environment” and retaliation claims under Title VII (42 U.S.C. §§ 2000e-2(a)(l) & 3(a)) and First Amendment and procedural due process claims under 42 U.S.C. § 1983 against the City of Richmond and two of its police chiefs.

The appeal was first heard by a panel of this court which vacated and remanded for further proceedings those portions of the judgment that had dismissed the Title VII hostile environment and retaliation claims but affirmed those portions that had dismissed the § 1983 First Amendment and procedural due process claims. See 120 F.3d 476 (4th Cir.1997). By majority vote of the active circuit judges of this court, the panel decision was later vacated, and the appeal ordered to be reheard en banc. See id. at 476.

The factual background and procedural history of the ease are fully set out in the vacated panel opinion (id. at 478-79) and need not be repeated here in full. It suffices to summarize here.

The Title VII and § 1983 claims grew out of allegedly discriminatory conduct of the complaining officers’ immediate supervisor, a Lt. Carroll, that led the complaining officers first to protest, then to file Equal Employment Opportunity Commission (“EEOC”) charges respecting Carroll’s conduct. Specifically, the facts alleged were that Carroll had repeatedly made disparaging remarks to and about female and black members of the police force that adversely affected vital relationships and working conditions within the force; that reports and complaints about Carroll’s conduct to responsible City officials by the complaining white officers resulted in no corrective action; and that following the complaining officers’ filing with the EEOC of Title VII charges concerning Carroll’s conduct the officers were subjected to retaliation by City officials in the form of a series of adverse employment actions.

Based on these alleged facts, the complaining officers asserted claims under Title VII that Carroll’s gender and race-based harassment of black and women members of the police force had created for them a hostile workplace environment, and that the City had unlawfully retaliated against the complaining officers both for their internally registered opposition to Carroll’s conduct (“opposition clause” claim) and for their having filed EEOC charges concerning it (“participation clause” claim) and claims under § 1983 that the City’s retaliatory actions violated the complaining officers’ First Amendment speech rights and their Fourteenth Amendment right not to be deprived of property without due process of law.

The district court dismissed the Title VII hostile environment claim on the ground that the complaining officers did not have standing under Title VII to bring an action for discrimination directed at others; dismissed the Title VII “opposition clause” retaliation claim on the ground of failure properly to exhaust administrative remedies before the EEOC; dismissed the Title VII “participation clause” claim on alternative grounds that the claim was “spurious” and that as a matter of law the officers’ filing of charges was not the proximate cause of the allegedly retaliatory actions by the City; dismissed the § 1983 First Amendment claim on the dual grounds that as a matter of law the City had no policy or custom of permitting the kind of conduct charged to Carroll, and that the complaining officers’ speech concerned intramural rather than public concerns; and dismissed the § 1983 procedural due process claim on the ground that as a matter of law the officers had no constitutionally protected property interest in the “teamwork” of which they claimed to have been deprived. 907 F.Supp. 934 (E.D.Va.1995) (dismissing Title VII hostile environment claim and § 1983 First Amendment and due process claims); 919 F.Supp. 216 (E.D.Va.1996) (dismissing Title VII “participation clause” and “opposition clause” retaliation claims).

Having reheard the appeal en banc, we affirm the district court’s judgment in its entirety. Dismissal of the Title VII “hostile environment” claim and the “participation clause” and “opposition clause” retaliation claims is affirmed by an equally divided vote of the en banc court. Dismissal of the § 1983 First Amendment and procedural due process claims is affirmed on the reasoning *1208of the district court. See 907 F.Supp. 934 (E.D.Va.1995).

SO ORDERED.