Appendix — Hughes v. Bedsole

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Sandra K HUGHES,

Plaintiff-Appellant,

v.

Morris BEDSOLE, both individually and in his official capac-

ity as Sheriff of Cumberland County, North Carolina; James D.

Bowser, both individually and in his official capacity as a Major

of the Cumberland County Sheriff’s Department; Cumberland

County Sheriff’s Department; Cumberland County, North

Carolina; Western Surety Company, Incorporated,

Defendants-Appellees.

Southern States Police Benevolent Association, Amicus Curiae.

No. 94-1299.

Appeal from the United States District Court for the

Eastern District of North Carolina, at Fayetteville. Franklin

T. Dupree, Jr., Senior District Judge.

(CA-91-115-3-H-D)

Argued: October 31, 1994

Decided: March 15, 1995

Before RUSSELL and HALL, Circuit Judges, and WILLIAMS,

Senior United States District Judge for the Eastern District

of Virginia, sitting by designation.

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HUGHES v. BEDSOLE

Affirmed buy published opinion. Judge Russell wrote the opin-

ion, in which Judge Hall and Senior Judge Williams joined.

ARGUED: Robert James Willis, Raleigh, NC, for appellant.

Joseph Michael McGuinness, McGuinness & Parlagreco,

Elizabethtown, NC, for amicus curiae. Craig A. Reutlinger,

Van Hoy, Reutlinger & Taylor, Charlotte, NC, Bobby Grey

Deaver, Fayetteville, NC, for appellees. ON BRIEF: Philip M.

Van Hoy, Van Hoy, Reutlinger & Taylor, Charlotte, NC, for

appellees Cumberland County, Sheriff’s Dept., Bowser, and

Bedsole; Larry J. McGlothlin, Fayetteville, NC, for appellee

Bowser.

OPINION

DONALD RUSSELL, Circuit Judge:

Plaintiff-Appellant Sandra K. Hughes appeals the district court’s

decision dismissing on summary judgment her claims that her

discharge from hier position as a jail shift supervisor was unlaw-

fully motivated by her sex, her exercise of her right to free speech,

and her handicapped status. We affirm.

I,

The Sheriff’s Department of Cumberland County, North

Carolina (CCSD), first employed Hughes in 1976 as a matron

in the Cumberland County Jail. After eight and one-half years

as a matron, she became a road patrol officer. While working

on the road patrol on August 5, 1986, Hughes injured her right

arm when she was involved in a car accident. The accident left

her with a permanent injury to her arm diagnosed as "persis-

tent lateral epicondylitis” (or “tennis elbow”). Joint Appendix

(JA) at 308, 324-25. The injury restricted the type of work

that Hughes could perform, but it did not prevent her from per-

forming the essential functions of a full-time road patrol officer.

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HUGHES v. BEDSOLE

Hughes was promoted in March 1988 and became the first

female sergeant and shift supervisor in the history of the

Cumberland County Jail. Apparently dissatisfied with some of

the working conditions at the jail, Hughes met with Reverend

Norman Mitchell, the Chaplain of the Jail, in late February or

early March, 1989. At the meeting, Hughes expressed con-

cerns regarding understaffing at CCSD and the threat that this

understaffing posed to the safety of persons housed or em-

ployed at the jail. She also discussed the improper training of

certain jail personnel and complaints from some female employ-

ees about derogatory remarks made to them by male employ-

ees. Hughes arranged for other jail employees to meet with

Mitchell and voice similar concerns. Mitchell relayed Hughes’

concerns to Cumberland County Sheriff Morris Bedsole,

whereupon Bedsole requested a meeting with Hughes and

Mitchell to discuss the matters.

At some point before March 16, 1989,’ Hughes and

Mitchell met with Bedsole to discuss Hughes’ concerns regard-

ing understaffing, improper training, and derogatory remarks

made by male employees to female employees. Bedsole was

sympathetic to Hughes’ understaffing concerns, but he told her

that he could not hire more employees until the Cumberland

County Commission approved the new CCSD budget. Bedsole

assured her he would investigate into conditions at the jail, and

he accepted two of Hughes’ suggestions of employees who

might serve as training officers to alleviate any training defi-

ciency.

On March 16, 1989, a member of the jail ministry team left

two jail catwalk doors unlocked during Hughes’ shift. Bedsole

suspended Hughes for three days without pay because of the

1 The evidence in the record is unclear as to whether this meeting oc-

curred before or after Hughes’ three-day suspension. The exact date of

this meeting, however, is immaterial to our decision in this case; and we

adopt Hughes’ recollection of the date for the purpose of reciting the facts.

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HUGHES v. BEDSOLE

incident. After being counseled by CCSD Major James D.

Bowser about this security violation, Hughes admitted telling

Bowser that “he could take her job and shove it,” or words to

that effect. JA at 99.

On March 24, 1989, a second incident occurred when a jail

employee left a jail door unlocked during Hughes’ shift On

March 27, 1989, in a meeting with Bedsole, Bowser, CCSD

Major Richard Washburn, and George T. Franks, the Sheriff’s

Legal Advisor, Washburn informed Hughes that she was dis-

charged. Hughes received a confirmation letter from Bedsole

the next day. Neither Washburn nor Bedsole informed Hughes

at the time specifically why she was fired, but Hughes later

learned when she applied for unemployment compensation that

Bedsole discharged her because of the two security violations

involving unlocked doors that had occurred during her shift.

Other evidence before the district court at summary judg-

ment demonstrated Hughes’ attitude towards her working

environment. For instance, between the two incidents of the

unlocked doors, Hughes went to Washburn, her immediate

superior, and asked that she be transferred to some other

position even if it meant surrendering her sergeant’s stripes.

Leroy Park, another platoon sergeant at the CCSD jail, testi-

fied that during this same time, Hughes had turned sour against

the department and was continually complaining to others about

the working conditions at the jail.”

Following her discharge, Hughes filed a complaint with the

Equal Employment Opportunity Commission (EEOC). The

2 Contrary to any implications in Hughes’ reply brief, we may con-

sider Park’s testimony. Hughes filed Park’s deposition before the district

court on October 8, 1993, and the testimony was properly in the record.

Pleading No. 68, filed October 8, 1993; see JA at 424-25. Moreover,

portions of Park’s testimony are recounted in the segments of Hughes’

second deposition included in the joint appendix before this Court. JA

at 135-36.

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HUGHES v. BEDSOLE

EEOC conducted an investigation and furnished Hughes with

a right to sue letter. As part of the investigation, an EEOC in-

vestigator interviewed Bedsole. The EEOC file was destroyed,

but Hughes filed in this action the affidavit of the EEOC inves-

tigator who interviewed Bedsole, in which the investigator

attests to the accuracy of a copy of her handwritten notes

attached to her affidavit. In her notes, the interviewer wrote

that Bedsole said that CCSD “tried to get people to help

[Hughes]” but that “there were problems on her shift” and that

she “caused problems with some of her employees.” JA at 232.

The investigator also wrote that Bedsole said that Hughes “was

not demoted because [he] couldn’t put her back on the road

(a lot of injuries) nor could she be put down into a jailer’s po-

sitions.” Id at 232-33.

On December 12, 1991, Hughes filed this action in the

Eastern District of North Carolina against Defendants-

Appellees Cumberland County, CCSD, Bedsole and Bowser,

in their official and individual capacities and the Western Surety

Company, Inc., under 42 U.S.C. § 1983, the First Amendment,

the Equal Protection Clause of the Fourteenth Amendment, 29

U.S.C. § 794, §§ 1, 12, 14, and 19 of Article I of the North

Carolina Constitution, N.C. Gen.Stat. § 58-76-5, and the North

Carolina common law of wrongful discharge. Hughes com-

plained that her recommendation for discharge and her actual

discharge were unlawfully motivated by the exercise of her right

to free speech concerning a matter of public concern, by her

sex, and by the handicapped status of her right arm.

To support her claim, Hughes alleged in her affidavit that

no other shift sergeant had ever been fired for an incident in

which a jail employee left a door unlocked during the shift

supervised by that sergeant. She produced specific CCSD

personnel records demonstrating six incidents in which jail

employees had left doors unsecured. The evidence details the

one-day suspensions of the six jailers involved in five of the

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HUGHES v. BEDSOLE

incidents but does not document any punishment, or lack of

punishment, for the respective sergeants on duty. Hughes, how-

ever, did state in her affidavit that she knew “for a fact” that

a male shift sergeant, who the parties stipulated was the ser-

geant on duty with respect to one of the incidents, did not suffer

any disciplinary action resulting in loss of pay. Hughes also

alleged that it was her “understanding” that none of the shift

sergeants who were on duty when the incidents occurred were

charged or suspended with loss of pay for the incidents. JA at

307-08. Furthermore, she stated in her affidavit that she was

the only sergeant who had spoken to Mitchell and Bedsole

about the mismanagement of the jail.

On September 16, 1993, Appellees filed motions for sum-

mary judgment on all claims; and the district court heard the

motions on December 29, 1993. During the hearing, the dis-

trict court raised a number of factual issues sua sponte that

Appellees had not identified in their summary judgment mo-

tion and supporting memorandum. The district court granted

Appellees summary judgment on January 4, 1994. In dismiss-

ing Hughes’ claims, the court relied on the absence of certain

factual evidence on three of the four areas that were raised sua

sponte by the Court during the December 29 hearing.

On January 6, 1994, Hughes filed a motion under

Fed.R.Civ.P. 59(e) to alter or amend the judgment of the dis-

trict court. Among other things, she attached to her motion

a supplemental affidavit in which she attested to the existence

of jury issues with respect to certain factual issues the court

had raised sua sponte. The district court denied Hughes’

motion by an order filed January 31, 1994, and expressly re-

fused to consider any evidence that was not in the record “at

the time of the rendition of the judgment” entered on January

4, 1994. JA at 524.

HUGHES v. BEDSOLE

Il.

Hughes first complains that the district court committed revers-

ible error by reviewing factual issues sua sponte in consider-

ation of Appellees’ summary judgment motion without giving

her a reasonable opportunity to submit relevant previously ob-

tained evidence. The Supreme Court has held that the party

moving for summary judgment must demonstrate that “there is

an absence of evidence to support the nonmoving party’s case,”

Celotex Corp. v. Catrett 477 U.S. 317, 325, 106 S.Ct. 2548,

2554, 91 L.Ed.2d 265 (1986), and that once the moving party

makes such a showing, the non-moving party “may not rest

upon mere allegation or denials of his pleading, but must set

forth specific facts showing that there is a genuine issue for

trial.” Anderson v, Liberty Lobby, Inc., 477 U.S. 242, 256, 106

S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986). This Court has noted

that this obligation of the nonmoving party “is particularly

strong [as in this case] when the nonmoving party bears the

burden of proof.” Pachaly v. City of Lynchburg, 897 F.2d 723,

725 (4th Cir.1990). Regarding the authority of federal courts to

enter summary judgment sua sponte, the Supreme Court has

stated that “district courts are widely acknowledged to possess

the power to enter summary judgments sua sponte, so long as

the losing party was on notice that she had to come forward with

all of her evidence.” Celotex, 477 U.S. at 326.

In this case, the district court notified Hughes at the De-

cember 29 hearing that it would consider sua sponte the ad-

equacy of her evidence on her sex discrimination claim, her free

speech claim, and her related claim against Bowser.’ The court

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HUGHES v. BEDSOLE

speech claim, and her related claim against Bowser.’ The court

inquired as to what evidence Hughes could produce that

Bedsole fired her for exercising her free speech rights and what

evidence she could produce to establish her claims of dispar-

ate treatmenton the basis of her sex. The court informed Hughes

that it would consider these issues even though Appellees had not

raised them in their summary judgment motion. When Hughes

claimed that she had no notice that these issues would be raised

at summary judgment, the court offered to grant her additional

time to produce any evidence she had.‘

Given the court’s offer, Hughes’ claim is misleading that she

had no notice until the district court issued its order that the

court might rely on issues not raised by Appellees. From the

transcript of the hearing, Hughes did not explicitly accept or

decline the offer from addressing those issues sua sponte. See

JA at 420. As noted above, district courts clearly have the

power to raise such issues sua sponte, and we hold that the dis-

trict court properly put Hughes on notice under the standard in

Celotex.

For similar reasons, we hold that the district court did not

abuse its discretion under Rule 59(e) by refusing to amend its

3 Hughes also complains that the district court improperly dismissed

ber claims against Bowser in the face of her request for additional time to

produce evidence regarding Bowser’s liability. See JA at 460-61. The

issucof Bowser’s liability is not relevant to this appeal because we hold

that the district court correctly dismissed all of Hughes’ claims at sum-

mary judgment.

* The transcript reads: [Hughes’ attorney]: I would submit that it

doesn’t preclude the Court from raising the issue su [sic] sponte. If we

were given an opportunity to marshal evidence that the Court feels may

not be in the record or protect the points we had, no notice would ever

be raised. The Court: You are not telling me you were taken by surprise

by the Court’s inquiry and [sic] you need more time, then I'll give you

more time. JA at 419-20.

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HUGHES v. BEDSOLE

judgment based upon evidence H ughes submitted to address

the evidentiary concerns the court raised sua sponte. See

Temkin v, Frederick County Commissioners, 945 F.2d 71 6,724

(4th Cir.1991) (reviewing district court’s denial of 59(e) motion

for abuse of discretion), cert. denied, 502 U.S. 1095, 112S.Ct.

1172, 117 L.Ed.2d 417 (1992). As reasoned above, the dis-

trict court properly raised the factual concerns and allowed

Hughes an opportunity for additional time to present supple-

mental evidence before the Court on the issues raised sua

sponte. Hughes did not take the Opportunity before summary

judgment was entered and only proceeded to introduce previ-

ously-obtained evidence to meet her burden with respect to

disparate treatment, a major deficiency noted by the district

court in its January 4, 1994, Order. Hughes’ supplemental

affidavit supporting her 59(€) motion presented evidence that

the same male sergeant who was not disciplined for one un-

locked door incident was also not disciplined when a second

incident occurred while he was the sergeant on duty.

In RGI, Inc. v. Unified Industries, Inc., 963 F.2d 658, 662

(4th Cir.1992), this Court held that a district court did not abuse

its discretion in refusing to consider a supplemental affidavit

in support of a 59(e) motion after the district court reasoned

that the litigant had offered “no justified reason” why the ad-

ditional material was not presented earlier. Accord Cray

Communications, Inc. v, Novatel Computer Sys., Inc., 33 F.3d

390, 395-96 (4th Cir.1994) (holding that district court did not

abuse discretion in denying 59(e) motion when litigant’s only

justification for not presenting Supplemental evidence earlier was

that its lawyer thought it was unnecessary”), cert. denied, —

U.S.— 115 S.Ct. 1254, — L.Ed. 2d — (1994). Similarly, given

our conclusion that Hughes had notice of the issues the dis-

trict court would consider in granting summary judgment and

given Hughes’ admission that she had the evidence before sum-

mary judgment, Hughes presents no justification for not sub-

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HUGHES v. BEDSOLE

mitting the supplemental affidavit before summary judgment.

We therefore conclude that the district court did not abuse its

discretion in refusing to consider the supplemental evidence in

Hughes’ Rule 59(e) motion.°

III.

Hughes next complains that the district court committed

reversible error by granting Appellees summary judgment on

her various discrimination and free speech claims. We review

the district courts’ granting of summary judgment de novo,

Wagner v. Wheeler, 13 F.3d .86, 90 (4th Cir.1993), and con-

sider facts and inferences drawn from the facts in the light most

favorable to Hughes, the party opposing the motion, Adickes

v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608;

26 L.Ed.2d 142 (1970); Ross v. Communications’ Satellite

Corp., 759 F.2d 355, 364-65 (4th Cir.1985). We conclude that

the district court properly dismissed Hughes’ claims on sum-

mary judgment.

A. Sex discrimination claim

On appeal, Hughes first alleges that Appellees wrongfully dis-

charged her on the basis of her sex in violation of the public

policy enunciated in the North Carolina Equal Employment

* The parties also debate whether the district court properly consid-

ered the testimony of Deputy Sheriff John Tyndall, who testified in a

nameclearing evidentiary hearing for Hughes. Hughes argues that the

court improperly considered the testimony. The court’s opinion, however,

indicates that the court construed the evidence in Hughes’ favor and ac-

cepted Tyndall’s assertions as true. It appears that the court discounted

the testimony because it concluded that the testimony did not demon-

strate the occurrence of any riot or disturbance at the jail and thus did

not establish that Hughes’ speech was of public concern. See JA at 479.

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HUGHES v. BEDSOLE

dismissed Hughes’ claim based upon its determination that

Hughes had not presented any evidence “from which a reason-

able jury could find that the plaintiff was discharged because

6 This statute reads in pertinent part:

It is the public policy of this State to protect and safeguard the

right and opportunity of all persons to seek, obtain and hold em-

ployment without discrimination or abridgement on account of

race, religion, color, national origin, age, sex or handicap by em-

ployers which regularly employ 15 or more employees.

N.C.Gen.Stat. § 143-422.2. This statute does not provide for a specific

statutory remedy, and we therefore analyze Hughes’ claims under the

North Carolina common law of wrongful discharge. See Iturbe v. Wandel

& Goltermann, Technologies, Inc, 774 F.Supp. 959, 962-63

(M.D.N.C.1991), aff'd, 23 F.3d 401 (4th Cir. 1994); cf Coman v. Tho-

mas Mfg. Co., 325 N.C. 172, 381 S.E.2d 445, 447-48 (1989) (establish-

ing a public policy exception to the employment at will doctrine under

North Carolina law). The specific statutory remedy for state employees

under N.C.Gen.Stat. § 162-36 does not apply to Hughes because she was

an employee of CCSD.

We need not address Hughes’ claims of sex discrimination under the

Fourteenth Amendment, 42 U.S.C. § 1983, and the North Carolina Con-

stitution. Hughes cannot bring a claim directly under the Fourteenth

Amendment because it does not create a cause of action. Her claim under

the Foyrteenth Amendment merges into her § 1983 claim because § 1983

merely creates a statutory basis to receive a remedy for the deprivation of

a constitutional right. See Zombro v. Baltimore City Police Dept, 868 F.2d

1364, 1366 (4th Cir.), cert. denied, 493 U.S. 850, 110 S.Ct. 147, 107

L.Ed.2d 106 (1989). Hughes cannot bring an action under § 1983 for

violation of her Fourteenth Amendment rights because Hughes originally

could have instituted a Title VII cause of action. See Great American Fed-

eral Sav. & Loan Ass’n v. Novotny, 442 U.S. 366, 37278, 99 S.Ct. 2345,

2349-52, 60 L.Ed.2d 957 (1979) (holding that a Title VII violation could

not be asserted by way of 42 U.S.C. § 1985(3), the conspiracy counterpart

to § 1983); see also Zombro, 868 F.2d at 1366-71 (reasoning that Age Dis-

crimination in Employment Act forecloses actions for age discrimination

under § 1983). Hughes initially filed a Title VII claim with the EEOC.

The EEOC did not issue a determination letter on her charge, and instead

issued Hughes a right to sue letter. Hughes, however, waived her right to

Continued on next page

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HUGHES v. BEDSOLE

she was a woman.” JA at 482.

Given the similar language and underlying policy of § 143-

422.2 and Tide VII 42 U.S.C. § 2000e et seqg., the North

Carolina Supreme Court has explicitly adopted the Title VII

evidentiary standards in evaluating a state claim under § 143-

422.2 insofar as they do not conflict with North Carolina stat-

utes and case law. North CarolinaDept of Correction v, Gibson,

308 N.C. 131, 301 S.E.2d 78, 82-85 (1983). Thus, in order

to demonstrate a prima facie case of disparate treatment under

$143-422.2, Hughes must show by a preponderance of the

evidence that: (1) she is amember of a protected class; (2) she

was qualified for her job and her job performance was

satisfactory; (3) she was fired; and (4) other employees who

are not members of the protected class were retained under

apparently similar circumstances. See Gibson, 301 S.E.2d at

82-83; see also McDonnell Douglas Corp. v. Green, 411 U.S.

792, 802 & n.13, 93 S.Ct. 1817, 1824 & n. 13, 36 L.Ed.2d 668

(1973); Cook v. CSX Transp. Corp., 988 F.2d 507, 511-12 (4th

Cir.1993). Hughes must thus eliminate concerns that she was

fired because of her performance or qualifications, two of the

most common nondiscriminatory reasons for any adverse

6 Continued from previous page

sue under Title VII because she did not file this lawsuit within the time

permitted. Appellees’ Br. at 61 n. 9.

Hughes’ claim under the North Carolina Constitution similarly fails.

A claimant whose state constitutional rights have been offended may pur-

sue an action directly under the North Carolina Constitution only”’[iJ}n

the absence of an adequate state remedy.” Corum v. University of N.C.,

330 N.C. 761, 413 S.E.2d 276, 289 (1992), cert. denied, — U.S. — 113

S.Ct. 493, 121 L.Ed.2d 431 (1992). In this case Hughes has an adequate

state remedy in her action for wrongful discharge in violation of the public

policy in N.C.Gen.Stat. § 143-422.2. See Alt v. Parker, 112 N.C.App. 307,

435 S.E.2d 773, 779 (1993) (holding that claimant could not maintain

direct action under Article I § 19, because he had adequate state remedies),

cert. denied, 335 N.C. 766, 442 S.E.2d 507 (1994).

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HUGHES v. BEDSOLE

employment decision. See Texas Dept of Community Affairs

v, Burdine, 450 U.S. 248, 253-54, 101 S.Ct. 1089, 1093-94,

67 L.Ed.2d 207 (1981).

If Hughes presents a prima facie case, Appellees can rebut

her case by producing evidence of legitimate, nondiscrimina-

tory reasons for the dismissal. If Appellees make this show-

ing, Hughes must prove by a preponderance of the evidence

that Appellees’ proffered reasons are pretext Jd. at 255, 101

S.Ct. at 1094; Gibson, 301 S.E.2d at 84. From these standards,

“(t]he ultimate burden of persuading the trier of fact that the

defendant intentionally discriminated against the plaintiff re-

mains at all times with the plaintiff.” Burdine 450 U.S. at 253,

101 S.Ct. at 1093, quoted in Gibson, 301 S.E.2d at 83. On

top of these evidentiary standards for sex discrimination, at the

summary judgment stage, Appellees must demonstrate that no

genuine issue of material fact exists and, in turn, Hughes must

present evidence from which a rational jury might conclude that

Hughes was discharged because she is a woman. See

Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475

U.S. 574, 585-87 & n. 10, 106 S.Ct. 1348, 1355-56 & n. 10,

89 L.Ed.2d 538 (1986).

To support her claim, Hughes presents evidence that Major

Washburn told Hughes on the day she was discharged that the

Sheriff’s office had no other openings for her when, in fact, CCSD

personnel records demonstrated that CCSD had a vacant Depu-

ty II position in its Road Patrol Division. Hughes also presents

evidence of other actions taken against jail employees responsi-

ble for unlocked door incidents, including evidence that a male

staff sergeant was not reprimanded after employees discovered

that jail doors were left unlocked during his shift in two separate

instances .’

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OE cetcnamineneeomnaes

HUGHES v. BEDSOLE

Because Appellees have produced evidence supporting the

legitimate, nondiscriminatory reason that Hughes was dis-

charged due to her security violations, Hughes must present

evidence creating a genuine issue of material fact regarding

whether Appellees’ proffered reasons are pretext See Gibson,

301 S.E.2d at 84. Taking the evidence in the light most favor-

able to Hughes, we affirm the district court’s conclusion that

Hughes has not produced evidence sufficient to withstand sum-

mary judgment. Although Hughes’ evidence is sufficient to

establish a prima facie case, her evidence does not create a

genuine issue of material fact regarding whether Appellees’

proffered reasons are pretext.

Hughes’ evidence that she was discharged even though a

road patrol position remained open does not create a jury ques-

tion on sex discrimination because she produced no evidence

that a male responsible for similar security violations filled the

position. Hughes also has failed to produce any evidence of

prior remarks or actions on the part of Bedsole that would

imply that he discriminated against her because of her sex. Fur-

+

Hughes produced the evidence of the second incident in her supple-

mental affidavit supporting her Rule 59(c) motion, and this Court is not

obligated to consider affidavits and exhibits that were not before the

district court when it made its decision. Kaiser Aluminum & Chem. Corp.

v. Westinghouse Elec. Corp., 981 F.2d 136, 140 (4th Cir.1992), cert. de-

nied, — U.S. — , 113 S.Ct. 2339, 124 L.Ed.2d 250 (1993). This Court

has nevertheless analyzed on appeal evidence offered in support of a 59(e)

motion to determine whether affirming the district court’s decision would

result in a “miscarriage of justice.” See Id. at 140, 146-47.

We will therefore consider Hughes’ supplemental affidavit in review-

ing the district court’s summary judgment decision. In response to

Hughes’ 59(e) motion, Appellees also produced evidence to support their

defenses. Given our summary judgment standard of considering the

evidence in the light most favorable to the nonmoving party, however,

we will not consider this additional evidence because Hughes timely ob-

jected to its introduction.

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HUGHES v. BEDSOLE

imply that he discriminated against her because of her sex. Fur-

thermore, evidence before the district court at summary judg-

ment demonstrates that male and female employees were

treated more leniently than Hughes for security violations

involving unlocked doors. Hughes’ evidence of discipline of

other jail employees shows that two female jailers were given

one-day suspensions without pay when it was discovered that

each of them left a jail door unlocked. More relevant to

Hughes’ discipline as a staff sergeant who supervises jailers,

the EEOC notes introduced by Hughes recount that Bedsole

stated that Marsha Hutchinson, another female staff sergeant,

received only a 30-day probation for “leaving doors unlocked.”

JA at 235.

This evidence that a female staff sergeant was treated more

leniently than Hughes largely undercuts her evidence that a male

staff sergeant was not disciplined for two unlocked door inci-

dents on July 19 and July 30, 1989. Although CCSD records

and Bedsole’s later statement to an EEOC investigator do not

explain why the male sergeant was not disciplined for the July

incidents, Appellees maintain that this apparent discrepancy in

punishment was due to the fact that Hughes admitted her re-

sponsibility for the first security violation while the male ser-

geant did not so admit his responsibility.* In contrast to the male

sergeant, Hughes testified that she told her supervising officer

that she “would have to take the blame” for the unlocked door

incident. Hughes Deposition II, November 10, 1992, at 58. She

also testified that it “slipped [her] mind as far as getting up and

going and checking” the doors because she was busy with paper-

work and because she thought another jail employee was going to

check the doors. Jd. at 63-66.

8 See Oral Argument, Hughes v. Bedsole, No. 941299 (Oct. 31, 1994),

in which Appellees stated that the evidence did not demonstrate one way

or the other whether the male sergeant admitted any wrongdoing.

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HUGHES v. BEDSOLE

cumstances surrounding her security violations, as well as her

overall performance at that time, were substantially similar to

those of the male shift sergeant whom she cites as having received

more favorable treatment. Cf, Cook, 988 F.2d at 511-12 (claim-

ant failed to establish prima facie case of discrimination because

evidence demonstrated that persons outside protected class were

disciplined as severely and more severely than claimant).

Additionally, the fact that a female staff sergeant was treated more

leniently than Hughes further demonstrates that Hughes has failed

to identify any jury issue as to whether Appellees’ proffered

nondiscriminatory reasons for Hughes’ discharge were pretext.

We therefore affirm the district court’s decision that Hughes’

evidence on sex discrimination is deficient and fails to establish

sufficient evidence to withstand Appellees’ motion for summary

judgment.

B. Free speech claim

In the alternative, Hughes pursues on appeal her claims

under the common law of wrongful discharge, 42 U.S.C. §

1983, and Article I, §§ 12 and 14 of the North Carolina Con-

stitution’ that she was unlawfully discharged for exercising her

right to free speech under the United States and North Caro-

lina Constitutions. It is clearly established that public employ-

% The North Carolina Supreme Court has held that claimants may bring

a direct cause of action under the North Carolina Constitution for alleged

violations of “free speech rights.” Corum v. University of N.C., 330 N.C.

761, 413 S.E.2d 276, 289-91 (1992). In its reasoning, the Corum court

cited Article I, § 14, of the North Carolina Constitution, which provides

for the freedom of speech and press. The court did not cite Article I, §

12, which provides for the right of assembly and petition, and it is un-

clear whether Corum supports a direct cause of action under § 12. Because

we hold that Hughes’ free speech claims do not withstand summary judg-

ment we need not decide whether she could properly bring a claim under

Article I § 12.

16A

HUGHES v. BEDSOLE

ees have a First Amendment right not to have their employ-

ment conditioned upon refraining from constitutionally pro-

tected speech. Rankin v. McPherson, 483 U.S. 378,383,107

S.Ct. 2891, 2896, 97 L.Ed.2d 315 (1987); Wagner v. Wheeler,

13 F.3d 86, 90 (4th Cir. 1993). In Mt. Healthy City School

District Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct.

568, 50 L.Ed.2d 471 (1977), the Supreme Court outlined the

inquiry courts must use to determine whether a public employee

was unconstitutionally discharged for exercising free speech

rights. Under this inquiry the employee has the initial burden

of demonstrating that her free speech was a "substantial” or

“motivating factor” in the adverse employment decision. /d.

at 287, 97 S.Ct. at 576. The employee also bears an initial

burden to demonstrate that her speech was constitutionally pro-

tected, ie., that her speech involved a matter of “public con-

cern” and that her interest in commenting on the matter of public

concern outweighed the public employer’s interest in promot-

ing the efficiency of the public services it provides. Id. at 283-

87, 97 S.Ct. at 574-76; Rankin, 483 U.S. at 383-85, 107 S.Ct.

at 2896-97. If the employee meets this initial burden, the burden

shifts to the public employer to show by a preponderance of

the evidence that the employee would still have been discharged

in the absence of the protected speech. Mt. eee 429 U.S.

at 287, 97 S.Ct. at 576.

Hughes recounts the conversations at issue with Mitchell

and Bedsole in her original complaint and in testimony during

her first deposition. When asked about the conversation with

Mitchell, Hughes responded during her deposition:

A. I spoke to him about things that were bothering me at

that time, such as: not having enough people to work

with, basically stress...

Q: Did you say anything else to Rev. Mitchell that you can

recall?

17A

HUGHES v. BEDSOLE

A. Aboutall the shifts being overworked. There was a lax in

the security on a lot of the platoons. Other than that...

Q: Did Rev. Mitchell ask you any questions?

A. He listened and he told me, he said, “Sandy, you know

there’s nothing I can personally do about it, but with your

permission, I think the Sheriff needs to be made aware

of this. I would like to take this to the Sheriff, explain

to him what is going on, but I need your permission to

do that.”

I told him, I said, “If you feel that it will help, by all means.

Because we’ve got to have some help and some relief up here.”

That’s where my conversation ended with him.

JA at 100-01. When asked during her deposition about what

she told Bedsole, Hughes stated:

I mentioned the being short handed, people that we had

not being trained properly, the lax in security. He said

he understood all of the problems. As far as the people

right now, his hands were tied until they worked out the

new budget.

JA at 108. She stated that she also told Bedsole that some of

the male jail employees were making derogatory sexual slurs

to female employees.

The district court predicated its decision on finding that the

issues Hughes raised in her meetings with Mitchell and Bedsole

were not of the type of public concern for which public employ-

ees are afforded constitutional protection. The district court

thus did not base its holding on whether Hughes’ speech was a

substantial or motivating factor behind her discharge. Many

courts reviewing such free speech claims, however, have ad-

dressed the public concern analysis after it is clear that the

employee’s free speech was a substantial factor behind the dis-

charge. See e.g., Rankin, 483 U.S. at 382-84, 390, 107 S.Ct. at

18A

HUGHES v. BEDSOLE

2895-97, 2900; Stroman v. Colleton County Sch. Dist, 981 F.2d

152, 156 (4th Cir.1992). We do not reach the issue of ‘whether

Hughes’ speech involved a matter of public concern because we

hold that Hughes has not set forth specific facts raising a genu-

ine issue of material fact regarding whether her speech was a

substantial or motivating factor behind her discharge." See e.g.,

Wagner, 13 F.3d at 91 (employee’s claims do not withstand sum-

mary judgment under Mt. Healthy analysis because employee

had not raised a genuine issue of material fact as to whether em-

ployee was discharged in retaliation for speech); Goldsmith v.

Mayor & City Council of Baltimore, 987 F.2d 1064, 1071 (4th

Cir.1993) (same); O’Connor v. Chicago Transit Auth., 985 F.2d

1362, 1368-71 (7th Cir.1993) (same), petition for cert. filed, —

U.S.L.W. — (U.S. July 12, 1993) (No. 935212); Cusson-Cobb

v. O'Lessker, 953 F.2d 1079, 1081 (7th Cir.1992) (same); cf

O’Connor v. Steeves, 994 F.2d 905, 913 (1s? Cir.) (plenary re-

view applies to Mt. Healthy motivation determination at sum-

mary judgment stage), cert. denied, — U.S. —, 114 S.Ct. 634,

126 L.Ed.2d 593 (1993).

Although the district court did not hinge its decision on

Appellees’ motivation, the court did make some “observations”

suggesting that Hughes failed to demonstrate a jury issue on the

question of whether Appellees’ decision to discharge Hughes

was motivated by an intent to retaliate for her free speech."

10 - Because we need not reach the issue, we express no opinion on

whether Hughes’ speech involved a matter of public concern.

1 In its opinion, the district court held that it did not decide whether

Hughes would not have been discharged “but for” her free speech, but

the court did “observe” some facts regarding Appellees’ motivation. JA

at 480. This “but for” causation is actually the test Appellees would have

to satisfy if Hughes first proved that her free speech was a substantial or

motivating factor behind her discharge, Mt. Healthy, 429 U.S. at 287,

97 S.Ct. at 576; and we need not reach the “but for” test because Hughes

has not satisfied this initial burde= of proof.

19A

HUGHES v. BEDSOLE

The court first noted that Hughes was discharged follow-

ing her admitted security violation and another security viola-

tion occurring within a few days of the first incident. The court

further observed that Bedsole had agreed with Hughes that ad-

ditional personnel were needed and that no evidence dem-

onstrated that Bedsole harbored any animus due to Hughes’

speaking to Mitchell outside the chain of command. JA at 480.

In the midst of these observations by the district court,

Hughes contends that her claim should survive summary judg-

ment because she was discharged within a few weeks after she

first pursued her matters with Mitchell and Bedsole. Hughes

cites several cases to support her contention that this tempo-

ral proximity demonstrates sufficient retaliatory motivation.

None of the cases on which Hughes relies, however, involve

the Mt. Healthy standard of proof, which is applicable in this

case. For instance, Hughes cites as supporting authority this

Court’s decision in Williams v. Cerberonics, Inc., 871 F.2d 452

(4th Cir.1989). In Williams, this Court held that a temporal

connection between the employee’s protected activity and her

discharge was sufficient to establish causation necessary for a

prima facie claim of retaliatory discharge under Title VII. To

establish her prima facie case, however, the claimant in Will-

iam was required to demonstrate only a “causal connection”

between the protected activity and the adverse action. I1& at

457. In contrast, the Mt. Healthy standard requires Hughes

to demonstrate that her speech was a substantial or motivat-

ing factor.

Given the different standard in this case, the holding in

Williams is nevertheless instructive in how this Court addressed

the merits of the claimant's Title VII charge. After the court

in Williams held that the claimant had demonstrated a prima

facie case, the court held that the claimant did not ultimately

prevail in her retaliatory discharge claim. The court reasoned,

“mere knowledge on the part of an employer that an employee

it is about to fire has filed a discrimination charge is not suf-

20A

HUGHES v. BEDSOLE

ficient evidence of retaliation to counter substantial evidence

of legitimate reasons for discharging that employee.” William

871 F.2d at 457; see also Wagner, 13 F.3d at 91 (“[T]emporal

proximity ... is simply too slender a reed on which to rest a Sec-

tion 1983 retaliatory discharge claim.”).

The undisputed evidence in this case demonstrates that

Hughes accepted the responsibility for leaving a jail door un-

locked in one incident and that another unlocked door incident

occurred while she was on duty a few days later. Hughes was

suspended without pay after the first incident and was discharged

after the second. Appellees declare that Hughes was discharged

based on these two security violations, and Hughes offers no

evidence of any comments Bedsole or Bowser made that imply

that Hughes was discharged for expressing her concerns to

Mitchell and Bedsole.’” The parties agree that Bedsole main-

tained an “open door policy,” and as the district court observed,

the record demonstrates no animus between Bedsole and Hughes

because Hughes met with Mitchell outside the chain of com-

mand.” Furthermore, during their conversation, Bedsole

agreed with Hughes’ concerns about the need for security

personnel. Given the lack of any direct evidence of retaliatory

intent, Hughes relies on the temporal connection between her

free speech and her discharge and on the evidence noted above

2 Hughes points to no conduct Bedsole exhibited towards her, other

than the discharge itself, to show that Bedsole harbored any resentment

to Hughes because she expressed her concerns about understaffing and

improper training. This lack of evidence is one factor that distinguishes

this case from Waters v. Churchill, —U.S. —114 S.Ct. 1878, 1891, 128

L.Ed.2d 686 (1994), in which the Supreme Court concluded that the

claimant had presented evidence of a genuine issue of material fact as

to her employer’s motivation behind her discharge.

6 In fact, Leroy Park states in his deposition that Marsha Hutchinson,

another female staff sergeant, met directly with Bedsole outside the chain

of command. He added that he was not aware of any retaliatory action taken

against Hutchinson as a result of this meeting.

21A

HUGHES v. BEDSOLE

in discussing her sex discrimination claim, in which a male ser-

geant, who did not so exercise his free speech rights, was not

punished when he was the shift sergeant on duty during two

incidents of unlocked jail doors.

We conclude that this evidence does not create a genuine

issue of material fact as to whether Hughes’ expressing her

concerns about understaffing and improper training was a

substantial or motivating factor behind her discharge. Consid-

ering Appellees’ legitimate, nondiscriminatory reasons and the

absence of any evidence of animus by Bedsole on account of

Hughes’ free speech, we hold the basic facts of the temporal

connection and the male sergeant’s receipt of no punishment

after two similar security violation do not create a jury issue.

We thus conclude that, as a matter of law, the evidence does

not prove that Hughes’ speech was a substantial or motivating

factor in Appellees’ decision to discharge her.

C. Handicap discrimination claim

Hughes also appeals her claim that she was unlawfully dis-

charged because of the epicondylitis, or “tennis elbow,’ she suf-

fers on her right arm. She brings her claims under the Federal

Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq.,'“ and she

primarily relies upon notes an EEOC investigator took during

an interview with Bedsole after Hughes’ discharge. In the

“ On appeal, Hughes also brings her handicap discrimination claim

under the common law of wrongful discharge in violation of the public

policy in N.C.Gen.Stat. § 143-422.2. See note 6, supra. She did not

present these grounds in her complaint before the district court Because

Hughes docs not present sufficient reason to consider these new grounds,

we need not address them on appeal. See Muth v. United States, 1 F.3d

246, 250 (4th Cir.1993) (court will consider issue raised for the first time

on appeal! “only in very limited circumstances, such as where refusal to

consider the newly-raised issue would be plain error or would result in

a fundamental miscarriage of justice”).

22A

HUGHES v. BEDSOLE

notes, the investigator wrote that Bedsole said that Hughes

“was not demoted because [he] couldn’t put her back on the

road (a lot of injuries) nor could she be put down into a jailer’s

position.” JA at 232-33.

In order to establish a handicap discrimination claim,

Hughes must first offer evidence that she is qualified as an

“individual with a disability” under the Rehabilitation Act. See

29 U.S.C. § 794(a). The Act defines an “individual with a

disability” as any person who “(i) has a physical or mental

impairment which substantially limits one or more of such

person’s major life activities, (ii) has a record of such impair-

ment, or (iii) is regarded as having such an impairment.” 29

U.S.C. § 706(8)(B). The corresponding federal regulations

further define "major life activities” as “functions, such as caring

for one’s self, performing manual tasks, walking, seeing, hear-

ing, speaking, breathing, learning, and working.” 29 C.F.R. §

1613.702(c).

Hughes has made no showing that her arm condition con-

stitutes such a disability. To support her claim, Hughes cites

cases in which courts have considered individuals with certain

muscle and joint conditions to be handicapped for purposes of

the Rehabilitation Act. The claimants in these cases suffered

from more restricting conditions than Hughes’ epicondylitis;

and moreover, this Court has held that the question as to wheth-

er an individual meets the statutory definition of handicapped

is best suited to a “case-by-case determination,” Forrisi v.

Bowen, 794 F-2d 931, 933 (4th Cir.1986) (quoting E.E. Black;

Ltd. v. Marshall 497 F.Supp. 1088, 1100 (D.Haw.1980)). We

have framed the proper inquiry as “whether the particular im-

pairment constitutes for the particular person a significant

barrier to employment.” Jd.

In this case, Hughes does not maintain that her epicondylitis

substantially limits a major life activity as she alleges that she

was fully capable of performing her tasks as Jail staff sergeant

and road patrol officer without any significant restrictions. See

23A

HUGHES v. BEDSOLE

JA at 148-49. Furthermore, this Court has reasoned that the

Rehabilitation Act’s reference to substantial limitation indicates

“that an employer regards an employee as handicapped in his or

her ability to work by finding the employee’s impairment to

foreclose involved.” generally the type of employment in-

volved" Forrisi, 794 F.2d at 935. Hughes has failed to offer spe-

cific evidence to show that her arm condition bars her from

seeking other employment in her field or that Bedsole considers

her barred from law enforcement generally. See Gupton v. Vir-

ginia, 14 F.3d 203, 204-05 (4th Cir.) (rejecting claim under Re-

habilitation Act because employee failed to show that an allergy

to tobacco smoke foreclosed her opportunity to obtain jobs in

her respective field), cert. denied, —U.S. — 115 S.CL 59, 130

L.Ed.2d 17 (1994). We therefore conclude that the medical di-

agnosis of Hughes’ epicondylitis is insufficient to establish that

her condition renders her legally handicapped under the Reha-

bilitation Act.

Moreover, § 794(a) of the Rehabilitation Act requires a

claimant to demonstrate that the discharge was “solely by rea-

son of her or his disability,” 29 U.S.C. § 794(a); and Hughes has

failed to establish a jury question on the issue of whether she

was discharged solely because of her handicap. See Little v.

F.B.I., 1 F.3d 255, 259 (4th Cir.1993) (holding that claimant

failed to show that he was terminated solely because of handi-

cap). Hughes’ only evidence to support handicap discrimina-

tion is the EEOC notes described above, and these notes do not

rebut Appellees’ assertions that Hughes was discharged for her

security violations. Thus, we affirm the district courses grant-

ing Appellee’s summary judgment on Hughes' claims of handi-

cap discrimination.

5 Furthermore, the EEOC investigator's parenthetical insertion of “a

lot of injuries” suggests that Bedsole did not make the statement specifi-

cally in conjunction with his remarks on why Hughes was not demoted.

24A

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UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FILED

April 10, 1995

No. 94-1299

CA-91-115-3-H-D

SANDRA K. HUGHES

Plaintiff - Appellant

V.

MORRIS BEDSOLE, both individually and in his official

capacity as Sheriff of Cumberland County, North Carolina;

JAMES D. BOWSER, both individually and in his official

capacity as a Major of the Cumberland County Sheriff’s De-

partment; CUMBERLAND COUNTY SHERIFF’S DEPART-

MENT; CUMBERLAND COUNTY, NORTH CAROLINA;

WESTERN SURETY COMPANY, INCORPORATED

Defendants - Appellees

SOUTHERN STATES POLICE BENEVOLENT ASSOCIATION

Amicus Curiae

On Petition for Reheating

with Suggestion for Reheating In Banc

Appellant’s petition for reheating and suggestion for rehear-

ing in banc were submitted to this Court. As no member of

this Court or the panel requested a poll on the suggestion for

reheating in banc, and

AS the panel considered the petition for reheating and is

of the opinion that it should be denied,

IT IS ORDERED that the petition for rehearing and sug-

gestion for rehearing in banc are denied.

25A

For the Court,

CLERK

AS DY ERAT

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

FAYETTEVILLE DIVISION

SANDRA K. HUGHES,

Plaintiff NO. 91-115-CIV-3-H-D

vs. MEMORANDUM OF DECISION

MORRIS BEDSOLE, both

individually and in his official)

capacity as Sheriff of

Cumberland County, North

Carolina, JAMES D. BOWSER, both

individually and in his official) capacity

as a Major of the Cumberland County

Sheriff’s Department, CUMBERLAND COUNTY,

NORTH CAROLINA, and the

WESTERN SURETY COMPANY, INC.,

Defendants

The plaintiff, who apparently has a penchant for prolixity,

filed in this employment discrimination action a twenty-seven-

page, 118-paragraph complaint alleging twelve separate causes

of action the gist of which is that she was discharged from her

position as a jailer by the defendant Sheriff of Cumberland

County, North Carolina in violation of her free speech rights

under the United States and North Carolina Constitutions,

because she was a female and because she had a physical handi-

cap. The case, which was randomly assigned to the Honor-

able Malcolm Howard of this court originally, was at his re-

quest transferred to the undersigned because of his overloaded

docket. It is now before the court on the joint motion of all

the defendants for summary judgment which motion has been

fully briefed and argued orally by counsel. For the reasons to

follow the motion will be granted.

27A

At the outset the court must dispose of two preliminary

matters. The first of these which was raised by plaintiff’s

counsel for the first time at the hearing on the summary judg-

ment motion is his charge that absent a formal recusal by Judge

Howard (and there has been none) the undersigned has no

jurisdiction to hear the case. This objection is without merit

and will be denied. What the Fifth Circuit had to say in a simi-

lar situation is appropriate here:

Stone’s contention that a district judge cannot

transfer his arraignment calendar to another district

judge without the consent of the accused and his

lawyer is patently frivolous. District judges may by

rule, order or consent transfer cases between them-

selves. Title 28, U.S.C.A. S 137.... Each judge

of a multi-district court has the same power and

authority as each other judge....... Moreover, Dis-

trict Judges have the inherent power to transfer

cases from one to another for the expeditious ad-

ministration of justice.

United States v. Stone, 411 F.2d 597, 598 (Sth Cir. 1969).

The second matter awaiting disposition prior to a ruling on

the summary judgment motion is plaintiff’s motion to strike the

summary judgment motion and its supporting memorandum

which the plaintiff has supported by a lengthy memorandum of

law based on the alleged failure of defendants to comply with

the local rules of this court with respect to the withdrawal and

substitution of counsel, the furnishing of copies of unreported

cases relied upon to opposing counsel and the filing of a brief

in excess of thirty pages in length without the court’s prior

approval. Technically there was a failure on the part of defense

counsel to comply with some of the requisites of the local rules,

and the joint brief of the four defendants addressing the twelve

causes of action set forth in plaintiff Is complaint did exceed

28A

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a7 PI a BOE AGL GIR A - ti aac

7 ES ACR: CPE hy IIIS AI TTT eH hia yi

the authorized page limit by five pages, but upon being served

with plaintiff’s motion, defense counsel promptly furnished

plaintiff’s counsel and the court with copies of the unreported

cases referred to in defendants’ brief, and it is not perceived how

the other technical violations complained of resulted in any

prejudice to the plaintiff. In passing, the court observes that if

the nineteen singled-spaced footnotes appended to plaintiff’s

own thirty-page brief had been doubled spaced, it, too, would

have exceeded the thirty-page-limit, and if its 116 pages of at-

tached exhibits are counted, plaintiff’s brief would exceed 150

pages in length.

Plaintiff’s motion to strike the summary judgment motion

and its supporting memorandum of law will be denied.

Turning now to the motion for summary judgment, the facts

involved here are not in serious dispute and may be briefly

summarized as follows:

The plaintiff was first employed by the Cumberland County

Sheriff’s Department (CCSD) in 1976 as a matron in the jail.

She filled this position for about eight and one-half years at

which time she became a road patrol officer, a position she held

for about three and one-half years during which time she sus-

tained an injury to one of her arms which resulted in a chronic

condition of epicondylitis commonly known as “tennis elbow.”

Upon reaching maximum medical improvement from this con-

dition plaintiff returned to full-time duties in her road patrol

position for about another year. In March of 1988 plaintiff was

promoted to the rank of sergeant in the CCSD jail and assumed

the duty of supervising one of the five platoons in the jail.

In February 1989 plaintiff, who had apparently become

dissatisfied with some of the working conditions in the jail,

conferred with the Reverend Norman Mitchell, the Jail Chap-

lain, to express her concerns and complaints to him regarding

what she considered to be understaffing in the jail, and she also

arranged for other employees to meet with Mitchell and ex-

press their concerns. Sometime prior to March 16 Mitchell

contacted the Sheriff and relayed plaintiff’s concerns where-

29A

upon the Sheriff requested a meeting with the plaintiff and

Mitchell to discuss matters.

During the shift under plaintiff’s supervision two cellblock

doors in the jail were found unlocked on March 16, 1989, and

when this incident was reported to Sheriff Bedsole he sus-

pended plaintiff for three days without pay. Upon her return

to work on March 20, 1989 plaintiff and Chaplain Mitchell met

with Sheriff Bedsole at which time plaintiff informed him of her

concerns regarding understaffing, the improper training which

in her opinion some of the CCSD employees had had and that

there had been complaints from some of the female employees

of the jail about derogatory remarks made to them by some of

the male employees. In response Bedsole stated that because

of the lack of funds additional staff could not be employed right

away, but at the same time he asked plaintiff for her sugges-

tions as to how the other problems with which she was con-

cerned might be corrected. Plaintiff then suggested the names

of three longtime jail employees in the jail who might serve as

training officers, one of whom Bedsole rejected out of hand.

As to plaintiff’s other concerns the Sheriff assured her “that he

would do an investigation into these matters, and things would

get better.”

Plaintiff had readily admitted her responsibility with respect

to the unlocked door incident of March 16, 1989, and on March

24, 1989 while the plaintiff was the supervisor on duty another

unlocked door was discovered at the jail. Following this in-

cident the Chief Jailer, defendant James Bowser, recommended

to the Sheriff that the plaintiff be fired, and on March 27, 1989

the Sheriff accepted Bowser’s recommendation and discharged

the plaintiff.

Between the two incidents of the unlocked doors plaintiff

had gone to her immediate superior, Major Washburn, and

asked that she be transferred to some other position even if it

meant surrendering her sergeant’s stripes. In a handwritten

statement which appears in the record as Defendants, Exhibit

33 plaintiff stated:

30A

~ Oe ES Peg

i

!

4

[Washburn] told me to just hang on a few more

weeks because he was looking into the problems in

the jail, and I had been put up in the jail for a rea-

son, so hang in there a little while longer and things

would get better.

I also told Lt. Morin I had asked Maj. Washburn

for a transfer.

I also gave Lt. Morin a two weeks verbal no-

tice that I was going to quit, because of the stress

they were keeping us under, but Lt. Morin refused

to accept my notice and told me to just go on and

work and forget about it.

Following her discharge the plaintiff filed a complaint with

the Equal Employment Opportunity Commissioner and an in-

vestigation was conducted by that agency resulting in her being

furnished a right to sue letter. The EEOC’s file has since been

destroyed, but plaintiff has filed in this action the affidavit of

the EEOC investigator in which she attests the accuracy of a

copy of her handwritten notes of her investigation which have

been attached to the affidavit. The following are pertinent

excerpts from the notes of the investigator’s interview with

Sheriff Bedsole:

When I became Sheriff I looked at the problems in

the dept. [Sandra Hughes] was on road patrol.

There were problems in the jail. We thought Sandy

[would] do a good job as a leader in the jail. I chose

to put Sandy in the jail as Ass't Shift Leader.

She had problems. The Capt worked [with] her. We

tried to get people to help her. There were prob-

lems on her shift. . . .

I am trying to recruit/promote [female and] minori-

ties. There are 290 employees in the [Sheriff’s]

Dept. [Female] Sgts in Supply, Detectives, Jails &

31A

an acting supervisor in Juvenile. We look for mi-

nority [females] to put through school.

Sandy was not demoted [because couldn’t] put her

back on the road (a lot of injuries) nor [could] she

be put down into a jailer’s position. ...

On 3/16 Sandy was disciplined for the doors being

unlocked [because] 1. she was in charge 2.; she

probably neglected to lock them 3. she [should]

have discovered the doors unlocked. Because we

are short handed we [could] not afford to actually

have them take the days off.

3/16 Sandy [received] reprimand. Hearing held.

Discipline upheld.

3/24 Cellblocks left open again.

Sandy caused problems [with] some of her employ-

O88...

I don’t normally get involved unless supervisors

aren’t doing their jobs.

Sgt- Parks did not [receive] a reprimand in 2/89

[because] it [could] not be determined who left the

doors unlocked [on his shift] ....

When Sandy & Rev. Mitchell came, to see me a lot

of her complaints had to do [with] being understaff

& staff was not trained. Now we have a training

[program] established. I was in agreement [with]

her. I told her all 4 shift leaders had the same prob-

lem. I think her lack of “coping” had a lot to do with

the situation. We have asked for personnel (from

[county] commissioners but they’ve not allowed us

to hire more people.

32A

PRO KEIN BLA!

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;

Re Sandy’s [allegations] concerning this discussion:

I put out an order that profanity [could] not be used

to any employees. I do not remember her making

any allegations re discrimination. I agreed [with]

her that there were problems, but I do not remem-

ber her stating that discrimination had occurred.

There was no mention of any actions I took which

she considered to be discriminatory. We have no

set policies regarding disciplining employees for

security violations.

No knowledge of allegations made (during our

discussion) re different [treatment], unfair [treat-

ment], etc. as perceived by Sandy.

Following the unlocked doors incidents plaintiff requested

and was given a grievance hearing before a board whose

members she had chosen. The board concurred in Bowser’s

recommendation that plaintiff be discharged.

On these facts the plaintiff has managed to allege twelve

causes of action against the defendants. She alleges:

1. That her rights of free speech and freedom of associa-

tion under the United States Constitution were violated by

defendants;

2. That her substantive due process rights under the

Constitution were violated;

3. That her procedural due process rights under the Con-

stitution were violated;

4. That her rights to free speech and freedom of associa-

tion under the North Carolina Constitution were violated;

5. That her substantive due process rights under the North

Carolina Constitution were violated;

6. That her procedural due process rights under the North

Carolina Constitution were violated;

7. That she was discharged in violation of public policy;

8. That she was discharged as a result of discrimination

under the federal handicap statutes;

33A

9. That her rights to equal protection under the United

States Constitution were violated;

10. That she was discharged as a result of unlawful discrimi-

nation under the North Carolina Constitution based on her sex;

11. That she is entitled to recover under the Sheriff's surety

bond issued by the defendant, Western Surety Company, Inc.;

and

12. That she is entitled to recover punitive damages.

In her brief on the summary judgment motion and during

the course of oral argument on it counsel for plaintiff has

conceded that defendants are entitled to summary judgment on

portions of the twelve listed causes of action, and it will not

be necessary for the court to deal with the matters thus con-

ceded in this memorandum. Plaintiff’s concessions are as

follows:

1. Summary judgment should be granted in favor of de-

fendants Bedsole and Bowser in their respective individual

capacities as to the plaintiff’s claims under the North Carolina

Constitution.

2. Defendants Cumberland County, Cumberland County

Sheriff Is Department, Bedsole and Bowser in their respective

official capacities are all entitled to summary judgment with

respect to the plaintiff’s claim for punitive damages.

3. Plaintiff has not established that she was deprived of any

liberty interest as a result of reference information CCSD

provided to the Hope Mills Police Department.

4. Defendants are entitled to summary judgment on plain-

tiff Is claim of the violation of her right to associate under the

United States and North Carolina State Constitutions.

5. Defendants are entitled to summary judgment with

respect to the plaintiff Is claims of violation of her substantive

due process rights.

The court will now consider the motion for summary judg-

ment as it relates to the defendants separately.

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CUMBERLAND COUNTY SHERIFF’S DEPARTMENT

The plaintiff has produced no law and presented no argu-

ment to show that. the CCSD is a legal entity with the capacity

to sue and be sued. In any event, there is no evidence in the

record to show that any action was taken with respect to the

plaintiff by the Sheriff’s Department as such. Instead, all of

the action relating to plaintiff Is discharge was taken by the

individual defendants, Bowser and Bedsole. The motion of

CCSD for summary judgment will therefore be allowed.

CUMBERLAND COUNTY

Defendant Bedsole is an elected official of Cumberland

County. He is not hired by the Board of County Commission-

ers or the County Manager but retains his office by popular

election, and he is forbidden by statute to delegate to another

person the final responsibility for discharging his official du-

ties. N.C.G.S. § 162-24. One of his official duties is set forth

in N.C.G.S. § 153A-103(1) as follows: “Each sheriff... elected

by the people has the exclusive right to hire, discharge, and

supervise the employees in his office.”

In the face of this statutory law plaintiff strenuously insists

that the employees of the CCSD are employees of Cumberland

County which is therefore responsible for plaintiff’s alleged

wrongful discharge. Citing Dotson v. Chester, 937 F.2d 920

(4th Cir. 1991), plaintiff argues that because Sheriff Bedsole

has “final policymaking authority” for Cumberland County with

respect to personnel actions such as the one involved here and

the county pays the salaries of the Sheriff’s Department em-

ployees, federal law imposes liability on the county in this action.

See City of St. Louis v. Praprotnik, 485 U.S. 112 (1988).

In the court’s view plaintiff’s reliance on Dotson is mis-

placed. That case decided under Maryland law involved an

action to recover fees awarded the plaintiffs under a consent

judgment entered in an action involving the maintenance of the

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Var

county jail. It was the county’s responsibility to provide a jail,

and the Sheriff was held to be the county’s final policymaking

authority with respect to the maintenance of the jail. No Mary-

land statute giving the sheriff the exclusive right to hire and dis-

charge his employees was involved in that case.

Cited for the first time on oral argument by counsel for the

plaintiff was a 74-page memorandum and recommendation

made by Magistrate Judge Dixon of this court involving

Cumberland County which was thereafter approved and

adopted by Judge Howard. That case, which is entitled

Brewington v. Bedsole and County of Cumberland, No. 91-

120-Civ-3-H, entered May 14, 1993 in the Fayetteville Divi-

sion of this court, is seemingly at variance with the conclusion

reached here. At pages 33-34 of his memorandum of decision

Magistrate Judge Dixon says:

The County has no authority whatsoever in the

Sheriff’s personnel decisions pursuant to applicable

state law. However, the Sheriff is the final policy-

making official for the County on personnel deci-

sions within the CCSD. His actions as an elected

official bind the County, at least in this context, as

the County has been given notice and an opportu-

nity to respond.

The difficulty this court has with that conclusion is that

notwithstanding it correctly states the law that the county has

no authority in the Sheriff Is personnel decisions, it assumes

that the county does in fact have authority in personnel deci-

sions within the CCSD and that the Sheriff is the county’s “final

policy-making official” with respect thereto. In this court’s

view this simply begs the quéstion. Under the state statute

quoted above the county is in no way concerned in the hiring

and firing of the Sheriff’s employees, and the county therefore

has no need whatever for a “final policy-making official” in

CCSD personnel decisions.

36A

Ee ETT PL NE, APOE LIT I ie Fae

PLE ig OT tn Sa EMS > Oe

RA ARID ETRE SL i

RAREST DY

In his memorandum of decision Magistrate Judge Dixon

said that the question involved in the Brewington case was “a

close one, “ and it is predicted here that when that case comes

to trial, Judge Howard will take a closer look at the question

of whether Sheriff Bedsole is “the final policy-making official

for the County on personnel decisions within the CCSD.”

The fact that Cumberland County pays the salaries of the

Sheriff’s Department employees is of no moment. The sala-

ries have to be paid from some source, and the county, not the

Sheriff, provides this source pursuant to its taxing authority,

but this does not make the Sheriff’s employees county employ-

ees. An analogous situation arises under the Eleventh Amend-

ment cases in which the state is accorded immunity for the

actions of certain employees notwithstanding the county pays

the salaries of such employees. See also Allen v, Fidelity &

Deposit Company, 515 F.Supp. 1185 (D.S.C. 1981), aff'd, 694

F.2d 716 (4th Cir. 1982).

The motion of Cumberland County for summary judgment

will be allowed.

DEFENDANT BOWSER

The complaint alleges that during the times in question the

defendant Bowser was employed in an executive capacity by

CCSD and that he had immediate supervisory authority over the

plaintiff; that he had “authority to make policy with respect to

the discipline and/or discharge of any employee of the CCSD;”

that he is sued in his official and individual capacities; and that

all of his actions complained of were taken under color of his

authority as a captain or major in the CCSD “pursuant to the

custom, practice, and/or policy of the CCSD.” The complaint

goes on to allege that following the two incidents in which jail

doors were found unlocked on plaintiff’s shift Bowser recom-

mended to Sheriff Bedsole that she be discharged and that this

recommendation was made in retaliation for plaintiff’s having

conferred with the jail chaplain concerning problems she per-

37A

ceived to be existing in the operation of the jail.

Sheriff Bedsole accepted Bowser’s recommendation and

discharged the plaintiff, but he did not have to do so, and it is

difficult to see how this simple recommendation made by

Bowser to the Sheriff, regardless of its motivation, could

impose liability on him when the Sheriff was the only person

vested with the statutory authority to hire and fire employees.

Bowser’s motion for summary judgment will be allowed.

DEFENDANT BEDSOLE

This brings us to a consideration of plaintiff’s case against

Morris Bedsole, Sheriff of Cumberland County, as the person

solely responsible under the statute for all the personnel deci-

sions made in the CCSD. The plaintiff alleges and has offered

evidence which she contends shows that Bedsole fired her in

violation of her free speech rights under the United States and

North Carolina Constitutions; in violation of her rights on

account of her sex; for violation of her rights under the due

process clauses of the United States and North Carolina Con-

stitutions; and in violation of her rights under the handicap

statutes. These claims will be addressed seriatim.

The Fens Senoch ond Vanel Seateetion Chel

This claim is predicated upon plaintiff’s claim that Bedsole

fired her in retaliation for her having exercised her free speech

rights in communicating her concerns about the operation of

the jail to Chaplain Mitchell, and she correctly asserts that as

a general principle public employees have the right not to have

their employment conditioned upon refraining from speech

protected under the First Amendment. Connick v. Myers, 461

U.S. 138, 142 (1983). The complaint alleges that in her meet-

ing with the Chaplain she expressed “some concerns and/or

complaints that she had with respect to the understaffing at the

Cumberland County Jail” and that when she met with Bedsole

38A

she complained “about the shortage of jailers and/or staff that

were necessary to properly maintain the Cumberland County

Jail during her shift.” She also told Bedsole “of her concerns

that some CCSD employees that were associated with her shift

were not properly trained, “ and she also told him that some

of the male employees of the jail were referring to female

employees with derogatory sexual slurs. (Paragraphs 20, 21 and

22 of the Complaint.)

To be protected by the First Amendment of the United

States Constitution, and the provisions of the North Carolina

Constitution are no broader, an employee’s speech must involve

a matter of “public concern.” Connick at 146. The court has

concluded that the plaintiff’s statements quoted above do not

measure up to this requirement.

While the fact that the statements were not made in a public

forum is not controlling, the test is whether the matter is one

in which “free and open debate is vital to informed decision-

making by the electorate.” Connick at 145. The definite im-

pression here is that the plaintiff was simply grousing about the

conditions of her own employment, a matter in which at best

the public would have had only limited interest. Personal

grievances concerning working conditions do not qualify as

matters of public concern. Lewis v. Blackburn, 759 F.2d 1171

(4th Cir. 1985).

The plaintiff has argued on the basis of a self-serving dec-

laration of her own and the inadmissible hearsay statement of

a friendly fellow employee that she had security of the jail in

mind when she made her statements about understaffing, and,

of course, jail security would be a matter of undoubted public

importance, but there is no evidence that the statements fol-

lowed a disturbance or riot demonstrating the need for addi-

tional personnel. Matters of public concern normally involve

charges of illegal action, abuse of authority or power, corrup-

tion or waste, and plaintiff’s speech in this case involved none

of these things. Jurgensen v. Fairfax County, Virginia, 745 F.2d

868, 871 (4th Cir. 1984).

39A

Having failed to find that plaintiff*s speech in this case

involved a matter of public concern, the court does not reach

the second step of the three-part inquiry outlined inMt. Healthy

City School District Board of Education v.-Doyle, 429 U.S.

274 (1977), and therefore does not decide whether the evidence

would support a finding that plaintiff would not have been

discharged “but for” her speech. It is observed, however, that

plaintiff was discharged following her admitted violation of one

serious security rule and that another similar incident occurred

on plaintiff’s shift for which she was responsible only a few days

after the first incident. At the same time it will be recalled that

the Sheriff agreed with the plaintiff that additional personnel

was needed in the jail while stating that he could not employ

additional help because of lack of funding. There is no evidence

of any animus on the part of the Sheriff relating to plaintiff's

speaking to the Jail Chaplain outside the chain of command or

that he fired her on this account.

In support of her claim that she was denied equal protec-

tion under the United States and North Carolina State Consti-

tutions plaintiff has cited an instance in which a male employee

of the Sheriff’s Department was given less severe disciplinary

action for the same offense for which she was disciplined and

later discharged, that is, allowing jail doors to be unlocked. The

explanation of the Sheriff is that this apparent discrepancy in

punishment resulted from the failure of the evidence to estab-

lish with certainty that the male employee was responsible for

the doors being found unlocked on the male employee’s shift.

Plaintiff has failed to establish by the evidence that she was in

fact the victim of disparate treatment, and her equal protec-

tion claim will therefore be denied.

Defendant has not raised the question as to whether the

interest of the public, such as it was, in plaintiff’s statements

was nonetheless outweighed by the Sheriff’s responsibility to

manage the internal affairs of the CCSD and provide effective

and efficient service to the public. This would involve the third

step in the Mt. Healthy analysis which the court does not reach.

40A

Defendant Bedsole’s motion for summary judgment on the

free speech and equal protection issues will be allowed.

The Sex Discrimination Clai

Plaintiff alleges and contends that she has offered evidence

creating a genuine issue of fact as to whether she was dis-

charged on account of being a female. She seeks to establish

this claim under an exception to the employment at will doc-

trine which obtains in North Carolina which holds that employ-

ees may not be discharged for reasons which are in contraven-

tion of the public policy of the state. The plaintiff claims that

Sheriff Bedsole discharged her in violation of the public policy

of North Carolina expressed in its Equal Employment Practices

Act, N.C.G.S. § 143-442.2.

To begin with, the court rejects defendant’s argument that

since the plaintiff had an adequate remedy under Title VII of

the federal equal employment statute, her cause of action based

upon the North Carolina statute should be dismissed as was

the case in Frazier v. First Union National Bank, 747 F.Supp.

1540 (W.D.N.C. 1990). Defendant argues that while the North

Carolina statute arguably constitutes an expression of public

policy, it does not support a private action by a plaintiff alleg-

ing wrongful discharge. Since the case of Amos v. Oakdale

Knitting Company, 331 N.C. 348, 416 S.E.2d 166 (1992), in

which it was held that “public policy is violated when an

employee is fired in contravention of express policy declara-

tions contained in the North Carolina General Statutes, 11 the

courts in this district have held that the existence of the right

to bring an action under Title VII in the state and federal courts

does not mandate the dismissal of a wrongful discharge claim

based on a violation of North Carolina public policy. Percell

v. International Business Machines, Inc., No. 90538-Civ-5-

D, decided December 8, 1992.

Defendant’s position on summary judgment is nonetheless

sound in this action, for there is simply no evidence in the record

41A

from which a reasonable jury could find that plaintiff was dis-

charged because she was a woman, and defendant’s motion for

summary judgment on this ground will be allowed.

The Procedural Due Process Claim

Plaintiff has alleged and offered evidence which she con-

tends establishes a genuine issue of material fact as to whether

she had a property interest in her job sufficient to support her

claim that in the course of her discharge she was denied pro-

cedural due process under the United States and North Caro-

lina Constitutions. Such a showing has long been required

under the cases of Board of Regents of State Colleges v. Roth,

408 U.S. 564 (1972), and Bishop v. Wood, 426 U.S. 341

(1976).

Under North Carolina law employees of a Sheriff’s Depart-

ment serve at the pleasure of the Sheriff. Subject to the excep-

tion to the employment at will doctrine noted above, they can

be discharged for any reason or no reason at all.

Plaintiff's argument that the existence of this public policy

exception to the employment at will doctrine somehow vested

her with a property interest in her employment is simply with-

out merit. What was said by the Third Circuit in the recent case

of Clark v. Modern Group Ltd. No. 92-2048, decided Novem-

ber 18, 1993 and reported at 62 L.W. p. 2364, is relevant here.

The case involved the alleged unlawful discharge of an at will

employee under Pennsylvania law contrary to that state’s public

policy exception to the rule:

When an employer that is engaging . . . in an

illegal activity seeks to coerce its employees into

participating in that activity or condoning it by si-

lence, the public’s interest in exposing unlawful

activities overrides the doctrine of employment at

will. The public policy exception to the doctrine of

employment at will does not exist, however, to

protect the employee. Rather it is the protection of

42A

society from public harm, or the need to vindicate

fundamental individual rights, that undergirds an at-

will employee’s common law action for wrongful

discharge in Pennsylvania.

Defendant’s motion for summary judgment based on

plaintiff's claim of the violation of her rights to procedural due

process will be allowed.

The Chale af iteaticen Hiersioniondl

Plaintiff’s claim that she was discharged on account of her

handicap is apparently based on what Sheriff Bedsole told the

EEOC investigator was his reason for his failure to demote

plaintiff and put her back on road patrol. To begin with it will

be noted that this statement attributed to the Sheriff was made

after plaintiff had been discharged, and just how this statement

can give rise to an inference that plaintiff’s discharge was

somehow related to the almost trivial injury she claims as a

handicap is not readily apparent to the court. There might be

a different case if plaintiff were suing on allegations that she

was denied employment in the road patrol because of her al-

leged handicap, but she has only claimed that she was dis-

charged because of her alleged handicap.

Be these things as they may, in order to establish a claim

based on handicap discrimination the plaintiff must first offer

evidence that she in fact qualified as a handicapped person under

the Federal Vocational Rehabilitation Act of 1973, 28 U.S.C.

§ 706(8)(b); 29 C.F.R. § 1613.702(a). The Act requires that

a claimant have a severe disability of a permanent nature which

substantially limits “functions, such as caring for one’s self,

performing manual tasks, walking, seeing, hearing, speaking,

breathing, learning, and working,” 29 C.F.R. § 1613.702(c).

Plaintiff has made no showing that she has any such disability.

On the contrary, she has alleged that she is fully capable of

performing the duties which were assigned to her in the jail and

43A

when she was on road patrol.

Finally, under the Act it was incumbent upon the plaintiff

to offer evidence as to whether her disability was the sole basis

for her discharge. There is no evidence whatever in this record

to support any such contention.

The defendants, motion for summary judgment based on

plaintiff’s claim of handicap discrimination will be allowed.

WESTERN SURETY COMPANY, INC.

Having found that the principal under the Sheriff’s bond

has not breached any of the obligations of the bond, it follows

that the motion of Western Surety Company, Inc. for summary

judgment must be allowed.

In view of the conclusions the court has reached on the

summary judgment motions it is not necessary that the remain-

ing issues relating to injunctive relief and punitive damages be

addressed, and judgment sustaining the motions for summary

judgment of all defendants will be entered.

/s/ F. T. Dupree, Jr.

F. T. DUPREE, JR.

UNITED STATES DISTRICT JUDGE

January 3, 1994,

44A

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

FAYETTEVILLE DIVISION

SANDRA K. HUGHES,

Plaintiff NO. 91-115-CIV-3-H-D

VS. JUDGMENT

MORRIS BEDSOLE, both

individually and in his official) capacity as Sheriff of

Cumberland County, North

Carolina, JAMES D. BOWSER, both individually and in his

official) capacity as a Major of the Cumberland County Sheriff’s

Department, CUMBERLAND COUNTY, NORTH CARO-

LINA, and the WESTERN SURETY COMPANY, INC.,

Defendants

For the reasons stated in the court’s memorandum of de-

cision filed contemporaneously herewith it is now

ORDERED, ADJUDGED AND DECREED:

1. The objection of plaintiff to the hearing of defendants,

motion for summary judgment by the undersigned is denied.

2. Plaintiff’s motion to strike the summary judgment

motion and its supporting memorandum is denied.

3. The motion for summary judgment of each defendant

is sustained, and this action is hereby dismissed.

Let the plaintiff pay the costs.

/s/ F. T. Dupree, Jr.

F. T. DUPREE, JR.

UNITED STATES DISTRICT JUDGE

January 3, 1994,

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

FAYETTEVILLE DIVISION

SANDRA K. HUGHES,

Plaintiff NO. 91-115-CIV-3-H-D

VS. ORDER DENYING MOTION

TO AMEND JUDGMENT

MORRIS BEDSOLE, both

individually and in his official capacity

as Sheriff of Cumberland County, North

Carolina, JAMES D. BOWSER, both

individually and in his official capacity as

a Major of the Cumberland County Sheriff’s

Department, CUMBERLAND COUNTY,

NORTH CAROLINA, and the WESTERN

SURETY COMPANY, INC.,

Defendants

The motion for summary judgment of the defendants in this

action was granted and by judgment entered January 4, 1994

the action was dismissed. Now before the court is plaintiff’s

motion to alter or amend the judgment with respect to the

plaintiff’s claims for sex discrimination and plaintiff’s claims

against Cumberland County. In support of their respective

positions on this motion each side has filed additional

evidentiary material, but since the court is of opinion that its

review should be confined to the record as it existed at the time

of the rendition of the judgment, none of this additional

evidentiary material has been considered by the court in arriv-

ing at its decision on the motion. A thorough reconsideration

of the original record, however, has failed to persuade the court

that the judgment of January 4, 1994 was in error. Accord-

ingly it is now

46A

ORDERED that the motion of the plaintiff to alter or amend

the judgment be and the same is hereby denied.

/s/ F. T. Dupree, Jr.

F. T. DUPREE, JR.

UNITED STATES DISTRICT JUDGE

January 28, 1994.

47A