The opinion
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-1404
REBECCA WILLIS,
Plaintiff - Appellant,
v.
TOWN OF MARSHALL, NORTH CAROLINA, a corporation of the State
of North Carolina,
Defendant - Appellee.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (1:02-cv-00217)
Argued: March 26, 2008 Decided: April 30, 2008
Before WILLIAMS, Chief Judge, TRAXLER, Circuit Judge, and David C.
NORTON, Chief United States District Judge for the District of
South Carolina, sitting by designation.
Affirmed in part; reversed and remanded in part by unpublished per
curiam opinion.
ARGUED: Jonathan Drew Sasser, ELLIS & WINTERS, L.L.P., Raleigh,
North Carolina, for Appellant. Larry Leake, Asheville, North
Carolina; Sandra Moody King, RUSSELL & KING, Asheville, North
Carolina, for Appellee. ON BRIEF: Thomas H. Segars, ELLIS &
WINTERS, L.L.P., Raleigh, North Carolina; Marc C. Tucker, SMITH
MOORE, L.L.P., Raleigh, North Carolina; Katherine Lewis Parker,
AMERICAN CIVIL LIBERTIES UNION OF NORTH CAROLINA, Raleigh, North
Carolina, for Appellant.
_________________
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
The Town of Marshall, North Carolina, hosts regular
Friday-night concerts at the Marshall Depot, the Town’s community
center. Rebecca Willis enjoyed attending the Friday-night events
and dancing to the music provided by local bands. The Town
eventually banned Willis from the Depot upon the recommendation of
the committee in charge of the events. As a result, Willis filed
this § 1983 suit in federal district court, asserting a number of
constitutional claims and seeking a preliminary injunction
requiring the Town to lift the ban. The district court denied
Willis’s motion for a preliminary injunction and subsequently
granted summary judgment in the Town’s favor. On appeal, we
affirmed the grant of summary judgment on most claims, but vacated
and remanded regarding a class-of-one equal protection claim. On
remand, the parties conducted further discovery, and the district
court again granted summary judgment against Willis. Willis now
appeals that order as well as an order declining to sanction the
Town for certain discovery-related conduct. As we explain below,
we affirm the denial of the sanctions motion but reverse the grant
of summary judgment and remand for further proceedings.
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I.1
A.
In the center of the Town of Marshall is the Marshall Depot,
a former railroad depot leased by the Town for use as a community
center. A committee (“the Committee”) appointed by the Town’s
Board of Aldermen (“the Board”) coordinates events at the Depot.
On Friday nights the Town opens the Depot and sponsors musical
entertainment, permitting local groups to sign up for playing time.
The Friday-night events are for the benefit of the public and are
attended by community members of all ages. During the concerts,
the musicians perform on a stage, which is located in front of rows
of auditorium-style seats where people can sit and listen to the
music. There is no real dance floor in the Depot, but there is a
small area off to the side of the stage and seating area where
people often dance.
Posted on the back wall of the Depot is a list of the Depot’s
“Rules of Behavior” stating:
(1) No Drinking (Alcoholic Beverages);
(2) No Smoking;
(3) Shoes and Shirts Required;
(4) No Sitting on Rails;
(5) No Blocking Doors;
1
Our summary of the facts is taken, in large part, from our
prior opinion relating to this case. See Willis v. Town of
Marshall, 426 F.3d 251, 253-56 (4th Cir. 2005).
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(6) No Cases or Instruments Left on Deck;
(7) No Jamming Inside Depot or on Deck;
(8) No Unsupervised Children Allowed to Run Loose Around
Building; and
(9) No Soliciting.
J.A. 89 (internal quotation marks omitted). There are no other
posted rules or regulations regarding dress or appropriate behavior
at the Depot.
Willis lives in Madison County, North Carolina, just outside
the boundaries of Marshall. She regularly attended the
Friday-night concerts, where she particularly enjoyed dancing.
According to the Town’s evidence, Willis danced in a sexually
provocative manner--gyrating and simulating sexual intercourse with
her partner while “hunch[ed]” on the floor. J.A. 53, 56. Some of
the Town’s evidence indicates that Willis wore very short skirts
and would frequently bend over while dancing, exposing her
underwear, her buttocks, and her “private parts.” J.A. 76.
Some community members, concerned about their children being
exposed to Willis’s dancing, complained to members of the
Committee. The Town contends that Committee members repeatedly
asked Willis to dance in a less provocative manner. These requests
were allegedly met with defiance. The Town maintains that rather
than toning down her dancing, Willis began to dance even more
provocatively.
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Willis takes issue with the Town’s view of the facts. Willis
describes her style of dance as “exuberant[] and flamboyant[],”
J.A. 15, but not inappropriate in any way. Willis acknowledges
that she wore short skirts to the Depot, but she contends that she
always wore underwear and pantyhose and thus could not have exposed
her “private parts.” According to Willis, she received only one
warning from a Committee member concerning her conduct at the
Depot. That occurred when Retha Ward told her one night at the
Depot, without elaborating, to “cool it.” J.A. 78 (internal
quotation marks omitted). Willis contends that the only other
person to give her any “warning” later told her that she was only
kidding.
In any event, the Committee ultimately decided to ban Willis
from attending events at the Depot. This decision was conveyed to
Willis by way of a letter from the Town’s mayor. The letter, dated
December 12, 2000, stated: “Due to the inappropriate behavior
exhibited by you and having received previous warnings from the
Marshall Depot Committee it is the consensus of the Committee that
you are banned from the Marshall Depot. This action is effective
as of today’s date.” J.A. 45.
After receiving the banishment letter, Willis contacted an
attorney. Her attorney conveyed to the Board Willis’s willingness
to apologize for any prior inappropriate behavior, to conduct
herself properly, and to abide by any dress code that might be
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adopted if she were permitted to return to the Depot. The Board
declined to lift the banishment, and this action followed.
B.
In her complaint, Willis alleged that the Town violated her
substantive due process rights by permanently banishing her from a
public forum; that the Town violated her First Amendment rights of
free expression, of association, and to receive information by
banning her from the Depot; that the Town deprived her of a liberty
interest without affording her adequate procedural protections;
that the authority upon which the Town relied to banish her was
unconstitutionally vague and overbroad; and that the Town denied
her equal protection of the law by singling her out for banishment
(“the equal protection claim”). Willis also sought entry of a
preliminary injunction requiring the Town to permit her to return
to the Depot. The Town filed a motion to dismiss, and the matter
was referred to a magistrate judge for a report and recommendation.
The magistrate judge recommended that the motion to dismiss be
denied except as to Willis’s claim that her associational rights
were violated. The magistrate judge also recommended that Willis’s
motion for a preliminary injunction be granted. The Town objected
to the magistrate judge’s report and recommendation.
The district court considered the Town’s objections and
entered an order denying the motion for a preliminary injunction.
And while the Town had yet to file an answer and no discovery had
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been ordered, the district court directed that the Town’s motion to
dismiss would be converted to a motion for summary judgment. The
court gave the parties thirty days to file any additional materials
relevant to consideration of the summary judgment question.
Thirty days after the district court’s order converting the
motion to dismiss to a motion for summary judgment, the Town
submitted a memorandum in support of the granting of summary
judgment, along with additional affidavits. That same day, Willis
filed her memorandum opposing summary judgment, along with
additional affidavits and exhibits. Willis also submitted an
affidavit under Rule 56(f) of the Federal Rules of Civil Procedure,
alleging summary judgment was premature because she did not have
the opportunity to seek discovery on her claims. The affidavit
sufficiently informed the district court of the discovery Willis
needed to oppose the motion for summary judgment.
The district court thereafter granted summary judgment in
favor of the town. See Willis v. Town of Marshall, 293 F. Supp. 2d
608, 622 (W.D.N.C. 2003). The only claim relevant to the present
appeal is the equal protection claim, which the court disposed of
by noting that there was no evidence of persons similarly situated
to Willis who were treated more favorably by the Town because the
record demonstrated that several attendees complained about Willis
and there was no evidence that there were complaints about anyone
else. See id. at 621. As to Willis’s Rule 56(f) motion for
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additional discovery, the district court concluded that because the
summary judgment record established that the Town “had a rational
basis for all of its challenged actions, further discovery in this
case would be fruitless.” Id.
On appeal, we affirmed the grant of summary judgment except
with regard to the equal protection claim. See Willis v. Town of
Marshall, 426 F.3d 251, 267 (4th Cir. 2005). As to that claim, we
concluded that Willis’s allegations that she did not dance
inappropriately and that she was singled out for punishment while
others who danced or dressed similarly were not punished were
sufficient to support her claim. See id. at 263-64. We explained,
based on the evidence in the record at the time, that “[a]mong
other things, Willis notes that the Town submitted affidavits from
community members who stated that Willis and a dance partner ‘would
hunch on the floor, simulating sexual intercourse.’ The Town,
however, banned only Willis; no action was taken against her
unnamed partner.” Id. at 263 (citation omitted). We ruled that
the absence of evidence that the Town received complaints
concerning any Depot attendee other than Willis did not justify the
grant of summary judgment. See id. at 263-64. In this regard, we
reasoned that “[e]ven assuming that the absence of complaints about
others would establish that Willis was not similarly situated to
the other patrons,” that absence did not authorize the grant of
summary judgment in light of the fact that the existence of such
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complaints was “a matter wholly within the knowledge of the Town”
and Willis had not had the opportunity to conduct discovery
regarding that issue. Id. at 263. Because Willis had alerted the
district court of the need for such discovery through a Rule 56(f)
affidavit, we concluded that the district court had abused its
discretion in denying such discovery. See id. at 264. We
therefore vacated the grant of summary judgment on that claim and
remanded for further proceedings. See id. at 264, 267.
On remand, the parties conducted discovery. Following up on
previously submitted affidavits from Everette Boone, who served on
the Committee and emceed the Friday-night events, and from William
Allen, a regular Depot attendee, alleging that Willis “and her
partner would hunch on the floor [at the Depot], simulating sexual
intercourse,” J.A. 53, 56, Willis served interrogatories on March
20, 2006, asking the Town to “identify all persons with whom [it]
contend[ed] Mrs. Willis engaged in simulated sexual intercourse, as
alleged in the Affidavits of Everette Boone and William Allen.”
J.A. 411-12. On June 14, 2006, seven weeks after responses were
due, three weeks after Willis filed a motion to compel, and one day
after the district court had specifically inquired regarding the
responses, the Town answered that it had not been able to obtain
the requested information but that it was “reported” that Willis
had danced with her son. J.A. 400 (internal quotation marks
omitted). After Willis moved for sanctions, the district court
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found that Town officials had frustrated compliance with discovery,
and the court ordered responses from the Town by August 28, 2006,
threatening the officials with contempt if they did not comply.
On August 24, 2006, the Town served responses, verified by
then-Mayor Pro Tem Laura Smith, identifying Emmitt Bullman, Dennis
Brown, and Ben Fisher (Willis’s son) as having simulated sexual
intercourse with Willis at the Depot. Responding to further
interrogatories, the Town named Boone, Ward, Bonnie Chandler,
Winston Cook, Aubrey Sams, and Beverly Seivers as the people who
“ha[d] claimed either that [Bullman, Brown, or Fisher] was a dance
partner of Mrs. Willis’s or that Mrs. Willis engaged in simulated
sexual intercourse with such individual.” J.A. 418. Willis
subsequently deposed Bullman and all of the identified witnesses
except Sams, who was deceased when identified by the Town, and
Allen, who died before he could be deposed.
At his deposition, Boone testified that he had never seen any
of Willis’s dance partners dance in a vulgar manner, and he
admitted that the statement in his affidavit that Willis’s partners
hunched and simulated sexual intercourse with her was incorrect.
He continued to maintain, however, that Willis danced in a vulgar
manner. He specifically noted that Willis danced provocatively
with her son, with whom he saw Willis dancing at the Depot “about
two dozen” times. J.A. 925. According to Boone, Fisher would
“gyro[] around a little bit” while Willis danced “[w]ith her legs
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spread” “with her hands under her [breasts],” simulating sexual
intercourse. J.A. 930-31. Chandler corroborated Boone’s testimony
that Willis simulated sexual intercourse with Fisher at the Depot
without Fisher himself ever dancing in a vulgar fashion. Ward,
Cook, and Seivers, however, denied seeing Willis simulate sexual
intercourse at the Depot. Bullman and Fisher (identified by the
Town as dance partners of Willis) and Willis herself denied any
inappropriate dancing. Indeed, Bullman and Fisher both denied ever
dancing with Willis at the Depot. Willis confirmed that she never
danced with her son at the Depot.
Mayor Pro Tem Smith was also deposed. Although she had
verified the Town’s interrogatory responses, Smith admitted to
having no basis for believing that Brown simulated sexual
intercourse with Willis. Further, her only explanation for
believing that Bullman simulated sexual intercourse with Willis was
that his name had “c[o]me up” at some point “over the years” as
having been caught on videotape doing “some type of inappropriate
dance” with Willis. J.A. 428.
Following the completion of discovery, Willis moved for
sanctions against the Town, Smith, and Boone. See Fed. R. Civ. P.
37. Willis argued that the Town’s allegation in its interrogatory
response--verified by Smith--that Willis had simulated sexual
intercourse with Brown, Bullman, and Fisher was baseless, and that
Boone himself had admitted the falsity of the allegation in his
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previous affidavit that Willis and her partner had hunched on the
floor simulating intercourse. Willis requested that the Town’s
answer be stricken and that default judgment be entered against the
Town. Willis also requested that the Town, Smith, and Boone be
held liable for the costs caused by their false statements, and
that contempt proceedings be commenced against them. Two days
later, the Town moved for summary judgment.
The district court denied Willis’s motion for sanctions,
finding that the complained-of conduct was not “as egregious as
characterized by [Willis].” Willis v. Town of Marshall, 2007 WL
1100836, at *14 (W.D.N.C. Apr. 12, 2007). The court also granted
the Town’s summary judgment motion. See id. at *13. The court
interpreted our remand “as being limited to whether Willis’s
‘unnamed partner[s]’ danced in a similar fashion to her dancing,”
but nonetheless considered the viability of other legal theories
“in the interest of finality.” Id. at *8 n.6. The court concluded
that no genuine issue of material fact existed regarding the “other
partners” theory because Willis had conceded that none of her dance
partners danced inappropriately. See id. at *9. The district
court further concluded that Willis, as a matter of law, had
refused to conform her conduct after she was warned repeatedly by
the Committee. See id. at *11. Based on that fact, the district
court determined that Willis was not similarly situated to any
other Depot attendee; that even if she had been similarly situated,
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any difference in treatment was not intentional; and even if she
had been intentionally treated differently from other similarly
situated attendees, there was a rational basis for the difference
in treatment. See id. at *11-*13.
II.
Willis first maintains that the district court erred in
granting summary judgment against her because there were several
genuine issues of material fact relating to her equal protection
claim. We agree.
We review a district court’s grant of summary judgment de
novo, viewing any facts and inferences drawn from them in the light
most favorable to Willis, the nonmoving party. See Evans v. Techs.
Applications & Serv. Co., 80 F.3d 954, 958 (4th Cir. 1996).
“Credibility determinations, the weighing of the evidence, and the
drawing of legitimate inferences from the facts are jury functions,
not those of a judge.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986). Therefore, although we must consider the record
in its entirety, we “must disregard all evidence favorable to the
moving party that the jury is not required to believe.” Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151 (2000). Thus,
we consider “evidence favoring the nonmovant as well as that
evidence supporting the moving party that is uncontradicted and
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unimpeached, at least to the extent that that evidence comes from
disinterested witnesses.” Id. (internal quotation marks omitted).
The claims at issue here are based on the Equal Protection
Clause of the Fourteenth Amendment, the purpose of which “is to
secure every person within the State’s jurisdiction against
intentional and arbitrary discrimination, whether occasioned by
express terms of a statute or by its improper execution through
duly constituted agents.” Village of Willowbrook v. Olech, 528
U.S. 562, 564 (2000) (per curiam) (internal quotation marks
omitted). The Supreme Court has recognized the validity of “class
of one” Equal Protection claims “where the plaintiff alleges that
she has been intentionally treated differently from others
similarly situated and that there is no rational basis for the
difference in treatment.” Id. For a plaintiff to demonstrate that
she is “similarly situated,” her evidence “must show an extremely
high degree of similarity between [herself] and the persons to whom
[she] compare[s]” herself. Clubside, Inc. v. Valentin, 468 F.3d
144, 159 (2d Cir. 2006). Generally, whether a plaintiff in a
class-of-one equal protection claim is similarly situated to those
who have been treated differently is a factual issue for a jury.
See Clubside, Inc., 468 F.3d at 159; McDonald v. Village of
Winnetka, 371 F.3d 992, 1002 (7th Cir. 2004).
Willis’s primary theory of liability is that she was similarly
situated to other Depot attendees because, like most other
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attendees, she danced and dressed appropriately. She maintains
that the Town intentionally treated her differently than these
other attendees by banning her from the Depot and that there was no
rational basis for the difference in treatment. We agree with
Willis that several genuine issues of material fact exist regarding
this theory.2
First, several genuine issues of material fact exist regarding
whether Willis danced or dressed inappropriately. The record
contains evidence that Willis’s dancing at the Depot was
appropriate and not unlike other attendees. See, e.g., J.A. 33, 36
(affidavits of Pat and Hugh Mathus stating that Willis’s style and
manner of dancing was appropriate and that others at the Depot
dance in the same manner); J.A. 161 (affidavit of Louise Branam
stating that “there [was] certainly nothing vulgar about” Willis’s
2
Because we hold, for the reasons we will discuss, that
several genuine issues of material fact exist regarding this
theory, we do not address Willis’s argument that genuine issues of
material fact also exist regarding her theory that even if she
danced or dressed inappropriately, she was intentionally treated
differently from various other individuals who behaved
inappropriately at the Depot. We do note, however, that, as was
also true of our prior opinion, our reversal of summary judgment on
the equal protection claim on the basis that genuine issues of fact
exist regarding a particular legal theory should not be interpreted
as a rejection of any theory that we have not specifically
discussed.
Because we hold that the district court erred in granting
summary judgment on the equal protection claim, we also do not
address Willis’s alternative argument that if summary judgment was
properly granted on her class-of-one claim, it was improperly
granted on her procedural and substantive due process claims.
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style of dancing); J.A. 164 (affidavit of Nancy Noland stating that
“there was nothing vulgar or obscene about [Willis’s] dancing”).
While the Town maintains that Willis simulated sexual intercourse
with her son at the Depot, Willis and her son deny that that ever
occurred. Indeed, Willis stated in an affidavit that her son never
even came to the Depot before she was banned, and her son confirmed
that he was never at the Depot at the same time that she was.
The record also contains evidence that Willis dressed
appropriately at all times at the Depot. See J.A. 33, 36
(affidavits of Pat and Hugh Mathus stating that Willis “dressed no
differently than any other women” at the Depot); J.A. 161-62
(affidavit of Louise Branam stating that Willis “dressed up more
than the other women, in what [she] would call church outfits,”
which included skirts); J.A. 165 (affidavit of Nancy Noland stating
that Willis “dressed nicely at the Depot”). Although the record
does have evidence that Willis’s skirts were so short that her
underwear could be seen when she bent over while dancing,3 it also
includes evidence that Willis “dressed no differently than any
other women” at the Depot, J.A. 33, 36, and that people sometimes
could see the underwear of other women who were dancing at the
3
The record also contained evidence that Willis exposed her
“private parts” at the Depot, but that was contradicted by several
witnesses. See, e.g., J.A. 165 (affidavit of Nancy Noland stating
that Willis “dressed nicely at the Depot,” “always wore pantyhose
under her skirts,” and “never exposed herself” there); J.A. 744-45
(Willis’s deposition testimony that she never exposed herself at
the Depot).
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Depot, see J.A. 824-25. Willis’s testimony that no one ever told
her before she was banned that she needed to change the way she
dressed also supports her contention that her dress was neither out
of the ordinary nor inappropriate.
The Town argues that, as a matter of law, Willis was not
similarly situated to other Depot attendees because the Committee
had received complaints about Willis. On this point, Willis
maintains that at least a genuine issue of material fact exists
regarding whether she is similarly situated to Depot attendee A.J.
Bridges. The record shows that Bridges, like Willis, had an
unorthodox dancing style. He was described as “danc[ing] like a
little banty rooster, jumping around,” “bending way over,” and, on
at least one occasion, “[t]apping his feet really loudly.” J.A.
474, 864-65. Smith said of Bridges that he “danced with everyone,
whether [they] wanted to or not.” J.A. 452. The record contains
evidence that the Committee objected to Bridges’s dancing style and
approved a Committee meeting motion providing that Ward would speak
with Bridges about it. When Ward did so and Bridges agreed to
accede to the Committee’s wishes, no sanction was imposed.
The Town also maintains that, as a matter of law, Willis was
not similarly situated to Bridges because, unlike Bridges, she
refused to comply with the Committee’s repeated requests to conform
her conduct to the Committee’s expectations. But genuine issues of
material fact exist on that point as well. First, Willis testified
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that she received only a single warning (from Ward) one night at
the Depot to “cool it,” J.A. 741, which Willis did not understand
and which Ward did not clarify.4 Second, the record contains
evidence that after this comment--as before it--Willis’s dress and
dancing were wholly appropriate, thereby creating a fact issue
regarding whether Willis refused to heed any warning. Boone
4
Claiming they are self-serving, the Town urges us to
disregard Willis’s statements in her affidavits and deposition
regarding the warnings she received and whether she dressed and
danced appropriately after the warning. That is not the law we
apply at the summary judgment stage, however. In viewing the
record in the light most favorable to the nonmovant, we assume the
credibility of the plaintiff’s evidence unless it is facially
incredible. See Cline v. Wal-Mart Stores, Inc., 144 F.3d 294, 301
(4th Cir. 1998) (reviewing denial of Rule 50(b) motion for judgment
as a matter of law); see also Dennis v. Columbia Colleton Med.
Ctr., 290 F.3d 639, 644 (4th Cir. 2002) (“A Rule 50(b) motion for
judgment as a matter of law follows the same standard as a Rule 56
motion for summary judgment.”). That the plaintiff herself is the
source of forecasted testimony is not sufficient to discredit it as
a matter of law. See Lucas Auto. Eng’g, Inc. v.
Bridgestone/Firestone, Inc., 275 F.3d 762, 768 n.3 (9th Cir. 2001)
(“[T]hat a statement is self-serving bears on its credibility, not
on its cognizability for purposes of establishing a genuine issue
of material fact.”). It is also worth noting that much of the
Town’s evidence is self-serving as well in that it is from members
of the Committee, whose decision to ban Willis is being challenged
in this suit.
Williams v. Giant Food, Inc., 370 F.3d 423, 433 (4th Cir.
2004), on which the Town relies, is inapposite. There we held only
that a plaintiff’s conclusory testimony that she believed her poor
performance evaluations to be “unfair and untrue and incorrect” was
“merely a self-serving opinion that cannot, absent objective
corroboration,” create a genuine issue of fact that could defeat
summary judgment. See id. at 433 (internal quotation marks
omitted). Here, the question of how many warnings Willis received
is one of fact, not opinion. And her assertions that she danced
and dressed appropriately were corroborated by several other
witnesses.
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testified in his deposition that he warned Willis that she was
dancing inappropriately, and she told him that “she’d do what she
damn pleased.” J.A. 952. However, Willis denied that any such
warning ever occurred.
The Town further argues that even if there existed genuine
issues of fact regarding whether Willis was treated differently
from attendees similarly situated to her, Willis failed to create
a genuine factual issue concerning whether such different treatment
was intentional. See Sunrise Corp. of Myrtle Beach v. City of
Myrtle Beach, 420 F.3d 322, 329 (4th Cir. 2005) (“Even if we were
to determine that plaintiffs’ project was similarly situated to
other projects, they would still need to show purposeful
discrimination.”). We disagree. The record contains evidence that
Willis’s dancing and dress were entirely appropriate and yet the
Committee took the extreme step of banning her for life without
ever previously having informed her of what behavior of hers was
objectionable, and that the Board refused to reconsider the ban
even after Willis promised to conduct herself appropriately and in
conformance with whatever rules the Committee would adopt. On
these facts, a reasonable jury could conclude that the Town’s
actions, rather than being guided by concern for the public
welfare, were actually motivated by a conscious desire to single
her out for undeserved punishment. Willis’s and her son’s
statements that they were never even at the Depot at the same time
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further support a reasonable inference that the dispute about
whether Willis had simulated sex with Fisher at the Depot was not
just the result of an honest difference of opinion, but instead,
the result of an accusation that was known to be false. Indeed,
the Town’s allegations in its interrogatory responses that Willis
simulated sexual intercourse with Brown and Bullman, when no basis
existed for those accusations, are consistent with that theory as
well.
Finally, the Town maintains that even if Willis was
intentionally treated differently than similarly situated Depot
attendees, there was a rational basis for the difference in
treatment “due to the fact that only Willis, and no other dancer at
the events, wore inappropriate clothing and, accidentally or not,
exposed her undergarments while engaging in such dance, and refused
to modify her dress and behavior after being warned by the Depot
Committee.” Br. of Appellee at 23. This argument, however,
clearly suffers from the same defect as the Town’s other
arguments--its failure to view the record in the light most
favorable to Willis.
In sum, the factual issues relating to Willis’s equal
protection claim are hotly contested, not the sort that may be
resolved by a judge at the summary judgment stage. We therefore
reverse the grant of summary judgment and remand for further
proceedings.
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III.
Willis next argues that the district court abused its
discretion in denying her motion for sanctions and, in particular,
refusing to enter a default judgment against the Town. We
disagree.
Rule 37 of the Federal Rules of Civil Procedure authorizes a
district court to impose sanctions for discovery-related
misconduct. The parties agree that in determining whether to enter
a default judgment as a discovery sanction, a district court
considers “(1) whether the non-complying party acted in bad faith,
(2) the amount of prejudice that noncompliance caused the
adversary, (3) the need for deterrence of the particular sort of
non-compliance, and (4) whether less drastic sanctions would [be]
effective.” Anderson v. Found. for Advancement, Educ. & Employment
of Am. Indians, 155 F.3d 500, 504 (4th Cir. 1998). We review the
denial of a sanctions request for abuse of discretion. See Hinkle
v. City of Clarksburg, 81 F.3d 416, 426 (4th Cir. 1996).
As we have explained, the facts forming the basis for Willis’s
sanctions motion center around the Town’s filing, at the outset of
this case, of Boone’s affidavit alleging that Willis “and her
partner would hunch on the floor, simulating sexual intercourse,”
J.A. 53, as well as the Town’s subsequent interrogatory responses,
verified by then-Mayor Pro Tem Smith, stating that Willis simulated
sexual intercourse with Brown, Bullman, and her son.
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It is clear that Smith, the sole person verifying the
interrogatory responses for the Town, had no basis for believing
that Willis simulated sexual intercourse with Brown or Bullman.
Smith stated in her deposition that Boone had identified only
Willis’s son as a person with whom Willis had simulated sexual
intercourse. Smith had no idea why Brown was named. And, her only
explanation for Bullman being accused of simulating sexual
intercourse is that his name had come up at some point “over the
years” as having been caught on videotape doing “some type of
inappropriate dance” with Willis. J.A. 428.
As to Boone, he has admitted the incorrectness of his
allegation in his affidavit that Willis “and her partner would
hunch on the floor, simulating sexual intercourse.” J.A. 53.
Willis suggested at oral argument that it was significant that
Boone’s retraction came after we issued an opinion suggesting that
it might be an equal protection violation to punish Willis but not
her partner for such activity. See Willis, 426 F.3d at 263. On
this matter we express no opinion.
Regardless of whether we might have adjudicated Willis’s
motion differently had we addressed it in the first instance, we do
not believe that the district court’s denial constituted an abuse
of discretion. The Town’s accusing Bullman and especially Brown of
simulating sex with Willis, in the absence of any basis for those
accusations, was certainly improper. But it is unclear what, if
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any, prejudice resulted because even had the allegations regarding
Bullman and Brown not been made, the central issue--whether Willis
danced inappropriately at the Depot--would still have prompted
Willis to depose many, if not all, of these witnesses. As for
Boone, his changing his story from alleging that Willis and her
partner would both hunch, simulating intercourse, to alleging that
Willis spread her legs and motioned in a sexual manner while her
partner “gyroed around a little bit,” J.A. 931, is not such a
radical alteration and could easily have been interpreted by the
district court as the simple mistake of a lay person not realizing
the importance of the particulars in describing the dancing of two
people. Since the district court is more familiar with the
individuals and the background of this particular situation, we
will defer to its good judgment on the appropriateness of
sanctions.
IV.
In sum, we affirm the denial of Willis’s sanctions motion but
reverse the grant of summary judgment against Willis and remand to
the district court for further proceedings.
AFFIRMED IN PART;
REVERSED AND REMANDED IN PART
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