Wilkie v. Board of Comm Chat

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

COSETTE WILKIE,

Plaintiff-Appellant,

v.

BOARD OF COMMISSIONERS OF

CHATHAM COUNTY,

No. 99-1898

Defendant-Appellee,

and

BEN SHIVAR; ROD TIDY, in their

official and individual capacities,

Defendants.

Appeal from the United States District Court

for the Middle District of North Carolina, at Greensboro.

James A. Beaty, Jr., District Judge.

(CA-94-463-1)

Argued: February 28, 2000

Decided: April 19, 2000

Before WILKINSON, Chief Judge, WIDENER, Circuit Judge,

and James R. SPENCER, United States District Judge

for the Eastern District of Virginia, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Thomas Keith Black, FORMAN, MARTH, BLACK &

IDDINGS, P.A., Greensboro, North Carolina, for Appellant. James

Redfern Morgan, Jr., WOMBLE, CARLYLE, SANDRIDGE &

RICE, P.L.L.C., Winston-Salem, North Carolina, for Appellee. ON

BRIEF: Paul E. Marth, FORMAN, MARTH, BLACK & IDDINGS,

P.A., Greensboro, North Carolina, for Appellant.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Appellant Cosette Wilkie filed a sex discrimination suit against

Chatham County and two of its officers after she was fired from her

job as an emergency dispatcher. She alleged that the county discrimi-

nated against her by terminating her for conduct it deemed deliberate

while merely reprimanding a male employee for conduct it deemed

negligent. After a jury verdict in Wilkie's favor, the district court

granted judgment as a matter of law to the county. Because Wilkie's

claim is supported by nothing more than speculation, we affirm the

judgment of the district court.

I.

Cosette Wilkie was employed as a dispatcher in Chatham County's

Emergency Services Department. Her primary responsibilities were to

receive incoming calls, dispatch the proper personnel and equipment,

and maintain contact with emergency units.

The Chatham County personnel ordinance establishes the circum-

stances under which an employee may be terminated, suspended, or

disciplined. Article VII, section 8 provides that an employee may be

suspended, demoted, or dismissed for unsatisfactory work perfor-

mance only after receiving two oral warnings and one written warn-

ing. Article VII, section 9 prescribes the penalties for more egregious

behavior. Specifically, section 9 provides that an employee may be

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suspended, demoted, or dismissed without any prior warning "for

causes relating to personal conduct detrimental to county service."

Subsection (h) of that provision establishes that"willful acts that

would endanger the lives and property of others" are one form of mis-

conduct that may trigger section 9 discipline.

The incident that led to Wilkie's termination occurred in the early

morning of November 11, 1992. At that time, Wilkie was working the

night shift in the communications office with co-dispatcher Henry

Smith. The crux of the incident is that Smith was sleeping while Wil-

kie was on break, and several radio calls to the communications office

consequently went unanswered. After an investigation, Emergency

Services Director Rod Tidy concluded that Smith was the victim of

a "set-up" engineered by Wilkie. According to Tidy, Wilkie deliber-

ately left her post and refused to answer radio calls while Smith was

sleeping in an effort to expose Smith for sleeping on the job. Tidy

believed that Wilkie thereby willfully endangered the lives and prop-

erty of the people of Chatham County. He suspended her without pay

and recommended to County Manager Ben Shivar that she be termi-

nated. Tidy found that Smith, on the other hand, had been merely neg-

ligent in falling asleep. Smith therefore received a written reprimand

in accordance with article VII, section 8 of the personnel ordinance.

Shivar then conducted his own investigation of the matter. Among

other things, he reviewed the transcript of the radio and phone traffic

during the incident and interviewed many of the individuals involved,

including Wilkie herself. Shivar concluded that Wilkie intentionally

left her post with the knowledge that incoming radio calls could not

be answered. Shivar then terminated Wilkie in accordance with article

VII, section 9 of the personnel ordinance. Shivar also concluded that

Smith's conduct had been merely negligent. In doing so, Shivar noted

that there was an unwritten policy among dispatchers that they could

sleep so long as a fellow dispatcher was alert and on duty. He also

observed that Smith had taken medication to control his allergies

before the incident and that this medication could induce drowsiness.

Wilkie appealed her termination to the Board of Commissioners of

Chatham County. The Board upheld her dismissal. Wilkie then filed

suit against the Board of Commissioners of Chatham County, Shivar,

and Tidy in August 1994. She alleged that defendants discriminated

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against her because of her sex in violation of Title VII and 42 U.S.C.

§ 1983. She also asserted several state law claims.

Following discovery, defendants moved for summary judgment.

The district court granted this motion as to the state law claims and

the Title VII claims against Shivar and Tidy, but denied summary

judgment on Wilkie's other federal claims. The case proceeded to a

jury trial. Defendants moved for judgment as a matter of law after

Wilkie's evidence had been presented and again after all the evidence

had been presented. Both motions were denied. Before the case was

submitted to the jury, Wilkie voluntarily dismissed the individual

defendants.

The jury found for Wilkie on both the Title VII and the § 1983

claims and awarded her $40,000 in damages. The county subse-

quently renewed its motion for judgment as a matter of law pursuant

to Fed. R. Civ. P. 50(b). The district court granted the motion and dis-

missed Wilkie's claims with prejudice. The court found that the evi-

dence presented by Wilkie was legally insufficient because it could

support only speculation that she was terminated because of her sex.

Wilkie now appeals.

II.

At trial, Wilkie's claims were subject to the burden-shifting scheme

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

progeny. Because this case has been fully tried on the merits, we now

need only consider "the ultimate question of discrimination vel non."

United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711,

713-14 (1983). Judgment as a matter of law on this question is appro-

priate unless Wilkie has established a "legally sufficient evidentiary

basis for a reasonable jury to find for [her]." Fed. R. Civ. P. 50(a); see

also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)

("[T]he trial judge must direct a verdict if, under the governing law,

there can be but one reasonable conclusion as to the verdict."). We

thus ask whether Wilkie has produced evidence that can reasonably

support a finding that the county intentionally discriminated against

her. See Aikens, 460 U.S. at 715.

We conclude that she has not. Viewing the evidence in the light

most favorable to her, Wilkie has offered nothing more than unbridled

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speculation. Her discrimination claims rest essentially on the unre-

markable facts that Wilkie, a female employee, was terminated while

Smith, a male employee, was only reprimanded. She provides no evi-

dence, however, that there was any causal relationship between her

sex and the county's decision to terminate her. Rather, she seeks to

obscure the most fundamental difference between her and Smith --

namely, the fact that after two investigations the county found that

Wilkie's misconduct was deliberate while Smith's behavior was

merely negligent. Indeed, the county's personnel ordinance prescribes

different penalties for these two different types of conduct. This dif-

ference is the county's stated reason for its actions, and Wilkie has

produced no evidence that could reasonably lead to an inference of an

impermissible motive. Her mere speculation that discriminatory ani-

mus lurked somewhere beneath the county's decisions simply cannot

support a finding of intentional discrimination. See, e.g., Williams v.

Cerberonics, Inc., 871 F.2d 452, 458 (4th Cir. 1989); Lovelace v.

Sherwin-Williams Co., 681 F.2d 230, 242 (4th Cir. 1982).

Wilkie has thus failed to make a legally adequate showing that she

was treated differently because of her sex. Although Wilkie may dis-

agree with the county's findings or the fairness of its actions, she can-

not now contest them in this forum. For it is well settled that "it is not

our province to decide whether the [county's] reason was wise, fair,

or even correct, ultimately, so long as it truly was the reason for the

plaintiff's termination." DeJarnette v. Corning Inc., 133 F.3d 293,

299 (4th Cir. 1998) (internal quotation marks omitted). We thus

decline Wilkie's invitation to second guess the county's personnel

decisions.

III.

The essence of Title VII's prohibition of sex discrimination is that

"similarly situated employees are not to be treated differently solely

because they differ with respect to" their sex. Trans World Airlines,

Inc. v. Hardison, 432 U.S. 63, 71 (1977). Here Wilkie and Smith were

not similarly situated employees. Rather, they were differently situ-

ated with respect to their conduct during the incident in question. It

was the county's judgment that Wilkie's conduct was deliberate and

thus warranted termination pursuant to the county personnel ordi-

nance. Likewise, it was the county's judgment that Smith's conduct

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was negligent and thus merited only a reprimand under the same ordi-

nance. It is not for the courts to disturb these judgments. See Jiminez

v. Mary Washington College, 57 F.3d 369, 377 (4th Cir. 1995).

Rather, in the absence of legally sufficient evidence of sex discrimi-

nation, the district court properly awarded judgment as a matter of

law. The judgment of the district court is accordingly

AFFIRMED.

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