Bodkin v. Town of Strasburg, Virginia , 386 F. App'x 411 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-2167
CHRISTOPHER L. BODKIN,
Plaintiff - Appellant,
v.
TOWN OF STRASBURG, VIRGINIA; TIM SUTHERLY, Individually and
in his Official Capacity as Chief of Police, Town of
Strasburg,
Defendants - Appellees.
Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Samuel G. Wilson,
District Judge. (5:08-cv-00083-sgw-mfu)
Submitted: June 4, 2010 Decided: June 29, 2010
Before WILKINSON, DUNCAN, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Annette K. Rubin, Leesburg, Virginia, for Appellant. Rosalie
Pemberton Fessier, TIMBERLAKE, SMITH, THOMAS & MOSES, P.C.,
Staunton, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Christopher L. Bodkin appeals the district court’s
order granting summary judgment in favor of the Town of
Strasburg (“the Town”) and its police chief, Tim Sutherly.
Bodkin claimed that Sutherly and the Town violated his due
process rights and terminated him on the basis of his age in
violation of the Age Discrimination in Employment Act of 1967,
as amended, 29 U.S.C. §§ 621 to 634 (2006) (“ADEA”). On appeal,
Bodkin argues that the district court erred in granting summary
judgment as to the ADEA claim because the court (1) relied upon
incorrect facts as the basis for its ruling; (2) failed to
consider Bodkin’s direct and circumstantial evidence of
discrimination; and (3) accepted as true Sutherly’s and the
Town’s evidence despite inconsistencies with documentary
evidence and witness testimony. Bodkin challenges the due
process ruling, alleging that the district court erred in
treating Bodkin’s “separation from employment as a voluntary
resignation,” rather than a termination. We affirm.
This court reviews de novo a district court’s grant of
summary judgment. Universal Concrete Prods. v. Turner, 595 F.3d
527, 529 (4th Cir. 2010). Summary judgment is appropriate when
the “pleadings, the discovery and disclosure material on file,
and any affidavits show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment
2
as a matter of law.” Fed. R. Civ. P. 56(c)(2). Summary
judgment will be granted unless a reasonable jury could return a
verdict for the nonmoving party on the evidence presented.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
To establish his due process claim, Bodkin must show
that he was deprived of a constitutionally protected property or
liberty interest by state action. Stone v. Univ. of Maryland
Med. Sys. Corp., 855 F.2d 167, 172 (4th Cir. 1988). Because
Bodkin resigned, state action did not cause his job loss. See
id. at 173 (holding that a voluntary resignation relinquishes a
property interest and is not subject to due process
protections). If, however, Bodkin’s resignation was “so
involuntary that it amounted to a constructive discharge, it
must be considered a deprivation by state action triggering the
protections of the due process clause.” Id. at 173. A
resignation is involuntary when it is obtained either through
material misrepresentation, or by duress or coercion. Id. at
174. “Under the misrepresentation theory, a resignation may be
found to be involuntary if induced by an employee’s reasonable
reliance upon an employer’s misrepresentation of a material fact
concerning the resignation. A misrepresentation is material if
it concerns either the consequences of the resignation or the
alternative to resignation.” Id. (internal quotation marks and
citations omitted). Under the duress/coercion theory, a
3
resignation is involuntary if, based on the totality of the
circumstances, the employer’s conduct deprived the employee of
free choice in the matter. Id. Circumstances to be considered
are: “(1) whether the employee was given some alternative to
resignation; (2) whether the employee understood the nature of
the choice he was given; (3) whether the employee was given a
reasonable time in which to choose; and (4) whether he was
permitted to select the effective date of his resignation.” Id.We have reviewed the record and conclude that Bodkin’s
resignation was voluntary. The resignation was neither induced
by his employer’s alleged misrepresentations, nor the product of
coercion or duress. Accordingly, we affirm the district court’s
entry of summary judgment on this claim.
To succeed on an ADEA claim, Bodkin “must prove, by a
preponderance of the evidence (which may be direct or
circumstantial), that age was the ‘but-for’ cause of the
challenged employer decision.” Gross v. FBL Fin. Servs., Inc.,
129 S. Ct. 2343, 2351 (2009). ADEA claims sought to be proven
using circumstantial evidence are analyzed under the burden-
shifting framework established in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 142 (2000) (assuming that the
McDonnell Douglas burden-shifting framework applies to ADEA
claims); Mereish v. Walker, 359 F.3d 330, 334 (4th Cir. 2004)
4
(applying McDonnell Douglas framework to ADEA claims). To
prevail under the burden-shifting framework, Bodkin must show:
(1) he is “a member of a protected class” — that is, 40 years or
older; (2) he “suffered an adverse employment action”; (3) he
“was performing [his] job duties at a level that met [his]
employer’s legitimate expectations at the time of the adverse
employment action; and (4) the position remained open” or he was
replaced by a substantially younger person. Hill v. Lockheed
Logistics Mgmt., Inc., 354 F.3d 277, 285 (4th Cir. 2004).
We have reviewed the record and conclude that Bodkin
failed to make a prima facie showing of unlawful age
discrimination in the district court. Accordingly, the district
court did not err in granting summary judgment in favor of
Sutherly on Bodkin’s ADEA claim.
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
5