Carroll v. Town of Univ Park ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
NATALIE CARROLL,
Plaintiff-Appellant,
v.
No. 97-2529
TOWN OF UNIVERSITY PARK,
MARYLAND; ROBERT W. WERGE;
STEPHEN S. BACON,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Joseph H. Young, Senior District Judge.
(CA-96-1626-Y)
Submitted: May 26, 1998
Decided: June 29, 1998
Before HAMILTON and MOTZ, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Mary Ann Ryan, RYAN & COYLE, Laurel, Maryland, for Appellant.
Linda S. Woolf, GOODELL, DEVRIES, LEECH & GRAY, L.L.P.,
Baltimore, Maryland, for Appellees.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Natalie Carroll appeals from the district court's order granting
summary judgment in favor of Defendants in her action brought under
42 U.S.C. § 1983 (1994), and Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e-2, -3 (1994). We affirm the district court's
order.
I.
Carroll began employment as a probationary police officer with the
Town of University Park, Maryland, on January 11, 1993. The police
officer agreement as well as the relevant provisions of the Town ordi-
nances provide that the officer is on probationary status for one year
from the date of employment. Carroll's employment agreement also
provides that, except as required by the Law Enforcement Officer's
Bill of Rights (LEOBR), nothing in the agreement limits the ability
of the Town or the Chief of Police to terminate Carroll's employment.
LEOBR by its terms does not apply to probationary officers. See Md.
Ann. Code art. 27, § 727(b), (c) (1996).
After Carroll began work, the senior officer in charge of the depart-
ment, Lieutenant Stephen S. Bacon, began to have serious concerns
about Carroll's performance as a probationary officer. This concern
was due to several complaints filed against Carroll by Town citizens,
and due to Carroll's demeanor, argumentativeness, refusal to accept
constructive criticism, refusal to accept responsibility for her conduct,
damaging of police property, and sloppiness in completing paper-
work.
Town citizens reported that Carroll overreacted to situations and
was unable to cope with being a small-town officer. In one incident,
Carroll issued fourteen traffic citations to one individual. When
2
Bacon attempted to speak with Carroll about this incident, she argued
with him in a raised voice. During her one year as a probationary offi-
cer, Carroll received four or five written complaints from citizens, and
numerous telephone complaints which were not pursued, an unusually
high number of citizen complaints to receive over a year's time
according to Mayor Robert Werge.
Carroll also received two dereliction reports, one for unsafe opera-
tion of a departmental vehicle, and one for insubordination relating to
her failure to follow instructions in filling out several reports. When
Bacon attempted to speak with Carroll about her failure to follow
instructions, she became insubordinate and argumentative, and she
slammed out of the room.
Bacon prepared Carroll's annual performance review for the period
January 1993 through December 1993. He rated her attitude "unsatis-
factory"; stated that she needed improvement in the areas of depend-
ability, quality of work, and relations with others; and stated that
Carroll met standards in the areas of quality of work and initiative.
Carroll's overall performance evaluation was "unsatisfactory." Carroll
did not exceed standards in any area of performance. Bacon noted in
the review that Carroll took daily work occurrences personally; spent
too much time on traffic enforcement; was unable to keep her emo-
tions in check when interacting with the citizens; was unable to com-
municate with her supervisors; and did not accept constructive
criticism. Bacon recommended that Carroll's appointment as a proba-
tionary officer be terminated. On January 2, 1994, the Council passed
a resolution extending Carroll's probationary period for 90 days.
After suffering a work-related injury, Carroll went on disability leave
beginning January 20, 1994.
On January 31, 1994, Carroll through counsel wrote to the Town's
attorney, stating that she believed proper procedures were not fol-
lowed in extending her probationary period, and also stating that Car-
roll believed her gender caused her to be treated more harshly than
other officers. In a letter dated March 15, 1994, Carroll advised the
Town that Carroll believed the Town violated her due process rights
in connection with her discharge, and also stated that Carroll was in
the process of filing an EEO complaint based on sex discrimination.
3
In a letter dated March 31, 1994, Bacon informed Carroll that her
position as a probationary officer was terminated. 1 After Carroll's ter-
mination, the town appointed a permanent Chief of Police who hired
three new probationary officers. One of the officers is a white female,
who is still employed by the Town, and who has consistently received
favorable performance evaluations from Bacon. That female officer
has also received no citizen complaints.
On May 24, 1996, Carroll filed suit against the Town, Bacon, and
Mayor Werge alleging violations of her constitutional rights under 42
U.S.C. § 1983, sex discrimination in violation of Title VII of the Civil
Rights Act of 1964, and retaliatory discharge in violation of Title VII.
The district court granted Defendants motion for summary judgment
as to all counts.
II.
Carroll first contends that Defendants violated her right to proce-
dural due process when they acted to extend her probationary status
for ninety days, and again when they terminated her, without provid-
ing any process. Carroll had no property interest in her continued
employment with the Town. Her employment agreement specifically
provided that she was probationary and could be terminated at any
time. The LEOBR, which provides procedural protections for law
enforcement officers related to termination and disciplinary measures,
by its express terms does not apply to probationary officers. See Md.
Ann. Code art. 27, § 727(b), (c). Carroll began her employment with
the Town on January 11, 1993, and her contract specifically provided
that she would be on probationary status for one year. Accordingly,
she was still on probationary status when the Town extended her ini-
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1 Prior to January 23, 1994, the Town Council was responsible for
approving personnel actions involving probationary officers, including
discipline and terminations. However, the Council passed a resolution
which removed the Council's involvement in personnel decisions, and
provided that as of January 23, 1994, authority for making personnel
decisions rested with the Chief of Police. Accordingly, because the Town
Council appointed Bacon to be acting Chief of Police as of January 1994,
the authority to terminate Carroll rested with Bacon, and Town Council
approval was not needed.
4
tial probationary status by ninety days on January 3, 1994, and not
within the protections of LEOBR.
Likewise, the Town resolution extending her probationary status by
ninety days simply extended Carroll's initial one-year probationary
period under her employment agreement, and did not change her sta-
tus as a probationary employee. Nor did Carroll have any right to
have the Town Council approve Bacon's decision to terminate her. In
accordance with a Town resolution in effect as of January 1994,
Bacon had the authority to terminate Carroll without the Town Coun-
cil's approval. Accordingly, Carroll fails to show that Defendants
denied her due process of law with regard to her extension of proba-
tion and her eventual termination. See Gilbert v. Homar, ___ U.S.
___, ___, 117 S. Ct. 1807, 1811 (1997); Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. 532, 538-41 (1985); Jenkins v. Weatherholtz,
909 F.2d 105, 108-09 (4th Cir. 1990).2
Carroll also contends that she was denied her due process right to
a name-clearing hearing. However, the comments in the dereliction
reports, in the citizen complaints, and in Bacon's performance evalua-
tion were not so stigmatizing that they impugned her"good name,
reputation, honor or integrity." Board of Regents v. Roth, 408 U.S.
564, 573 (1972) (quoting Wisconsin v. Constantineau, 400 U.S. 433,
437 (1971)); Watson v. University of Utah Med. Ctr., 75 F.3d 569,
579 (10th Cir. 1996). Nor did Carroll show that the charges were
false. See Roth, 408 U.S. at 573; Farias v. Bexar County Bd. of
Trustees, 925 F.2d 866, 877-78 (5th Cir. 1991). Accordingly, Carroll
failed to show that she was entitled to a name-clearing hearing.
Carroll's last argument in connection with her due process claim
is that Defendants violated her First Amendment rights when they ter-
minated her after she communicated her concerns about the manner
in which she was discharged and her intent to file a sex discrimination
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2 Carroll argues that the extension of her probationary status was "disci-
plinary," thus bringing her within the protections of LEOBR. Carroll
cites no authority for this proposition. Moreover, the record shows that
Carroll was never formally disciplined in relation to any citizen com-
plaints or her dereliction reports, and that the probationary extension was
not meant to be a disciplinary measure.
5
charge. Carroll's letters through counsel to the Town's attorney only
deal with Carroll's concerns regarding her status as an employee, a
matter only of personal interest. See Connick v. Myers, 461 U.S. 138,
146 (1983); DiMeglio v. Haines, 45 F.3d 790, 805 (4th Cir. 1995).
Accordingly, Carroll fails to show a denial of her First Amendment
rights. See Board of County Cmmr's v. Umbehr, 518 U.S. 668, ___,
116 S. Ct. 2342, 2346-47 (1996); DiMeglio, 45 F.3d at 805.
III.
Carroll contends that she was subject to sex discrimination in viola-
tion of Title VII. Carroll fails to make out a prima facie case of sex
discrimination because she fails to show that she was performing sat-
isfactorily. See St. Mary's Honor Ctr. v. Hicks , 509 U.S. 502, 506
(1993). She was often argumentative and insubordinate with her
supervisors, refused to accept responsibility for her actions, damaged
police property several times, and was often late in turning in paper-
work or did a sloppy job. She received several formal citizen com-
plaints, as well as several other informal complaints. On one
occasion, she issued fourteen tickets to one individual, and then raised
her voice with her supervisor when he attempted to speak with her
about it. Importantly, Carroll failed to improve her performance after
being counseled.
Carroll also fails to show that similarly situated employees were
treated more favorably. See Hicks, 509 U.S. at 506; McDonnell Doug-
las Corp. v. Green, 411 U.S. 792, 802 (1973). Carroll relies on the
Town's treatment of probationary officer John Gheen as a compara-
tive. Gheen, hired around the same time as Carroll, also had disciplin-
ary problems. He received a total of nine dereliction reports. On one
occasion, Bacon recommended disciplinary action against Gheen
relating to his failure to follow orders. No formal citizen complaints
were filed against Gheen. Bacon stated that although Gheen had prob-
lems during his probationary period, he was generally receptive to
criticism and his performance improved after being counseled. Bacon
rated Gheen's overall performance as "improvement needed," and
recommend that Gheen's probationary period be extended by six
months. The Town Council accepted Bacon's recommendation. In
February 1994, Gheen was involved in a serious car accident. How-
6
ever, before he could be disciplined for this accident, he resigned his
employment with the Town.
Gheen and Carroll were treated similarly to the extent that they
both received criticism and dereliction reports from Bacon. Bacon
also recommended that Gheen be formally disciplined on one occa-
sion, something he never did with Carroll. Both Gheen and Carroll
had their probationary periods extended after less than favorable per-
formance reviews from Bacon. In fact, Gheen's probationary status
was extended for a longer period than Carroll's. The Town never had
an opportunity to discipline Gheen or terminate him after his serious
traffic accident because he resigned immediately afterwards. Accord-
ingly, Carroll fails to show that they were treated differently. See
Hicks, 509 U.S. at 506; McDonnell, 411 U.S. at 802.
Even had Carroll made out a prima facie case, however, Carroll
fails to show that the Town's legitimate, non-discriminatory reasons
for terminating her--argumentativeness, insubordination, refusal to
accept responsibility, carelessness with paperwork--were pretextual.
See Texas Dep't of Community Affairs v. Burdine , 450 U.S. 248, 254
(1981); Hicks, 509 U.S. at 507-08.3 Accordingly, Carroll fails to show
that she was subject to discriminatory treatment based on her sex in
violation of Title VII.4
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3 Carroll's equal protection claim is based on the same facts as her sex
discrimination claim under Title VII. Because Carroll fails to show that
she was discriminated against based on her sex in violation of Title VII,
she cannot show that she was denied her right to equal protection. See
Boutros v. Canton Regional Transit Auth., 997 F.2d 198, 202 (6th Cir.
1993); Keller v. Prince George's County, 827 F.2d 952, 956-63 (4th Cir.
1987) (recognizing congruence of public employee rights under Equal
Protection Clause and Title VII to be free of gender discrimination).
4 Carroll also contends that the statement of Lorraine Kincaid that it
was her "impression that he [Bacon] did not like to deal with women
police officers" was improperly struck by the district court. The district
court found that Lorraine Kincaid did not have adequate factual support
for this statement. Lorraine Kincaid is the wife of Officer David Kincaid,
and has herself never worked with Bacon. Affidavits submitted in sup-
port of a summary judgment motion should be based upon personal
knowledge. See Fed. R. Civ. P. 56(e). Although statements in affidavits
7
IV.
As to the claim of retaliatory discharge, even assuming Carroll
made out a prima facie case, the Town came forth with legitimate,
non-discriminatory reasons for terminating her. See Carter v. Ball, 33
F.3d 450, 460 (4th Cir. 1994); Williams v. Cerberonics, Inc., 871 F.2d
452, 457 (4th Cir. 1989). Carroll fails to show that these legitimate
reasons are pretextual, and that retaliation for her threat to file a dis-
crimination claim was the real reason for her termination. See Hicks,
509 U.S. at 514-15.
We affirm the district court's order granting summary judgment to
Defendants. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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can include inferences and opinions, those inferences must be based on
personal knowledge and have a factual foundation. See Drake v. Minne-
sota Mining & Mfg. Co., 134 F.3d 878, 887 (7th Cir. 1998). Here, Lor-
raine Kincaid failed to provide adequate factual support for her statement
of opinion regarding Bacon, and thus this portion of her affidavit was
properly struck.
8