UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

COSETTE WILKIE,

Plaintiff-Appellee,

v.

BOARD OF COMMISSIONERS OF

No. 95-2803

CHATHAM COUNTY; BEN SHIVAR; ROD

TIDY, in their official and individual

capacities,

Defendants-Appellants.

Appeal from the United States District Court

for the Middle District of North Carolina, at Durham.

N. Carlton Tilley Jr., District Judge.

(CA-94-463-CV-1)

Argued: September 26, 1996

Decided: March 28, 1997

Before MURNAGHAN and ERVIN, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

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Affirmed in part, dismissed in part, and remanded by unpublished

opinion. Senior Judge Phillips wrote the opinion, in which Judge

Murnaghan and Judge Ervin joined.

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COUNSEL

ARGUED: James Redfern Morgan, Jr., WOMBLE, CARLYLE,

SANDRIDGE & RICE, P.L.L.C., Winston-Salem, North Carolina,
for Appellants. Thomas Keith Black, FORMAN, MARTH, BLACK

& ANGLE, P.A., Greensboro, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PHILLIPS, Senior Circuit Judge:

Following discharge from her position as a police"telecommunicator," Cosette Wilkie brought this action against her employer, the

Chatham County (N.C.) Board of Commissioners (the Board), Ron

Tidy, her superior, and Ben Shivar, the County Manager, alleging parallel equal protection and sex discrimination claims under 42 U.S.C.

§ 1983 and 42 U.S.C. § 2000(e) et seq.,"Title VII", respectively, and

pendent state law claims of contract and covenant breach. On the

defendants' joined motions for summary judgment, the district court

dismissed on the merits the Title VII claims against Tidy and Shivar

and the pendent state law claims against all defendants, but denied the

motions of all defendants for summary judgment on the merits of the

§ 1983 claims, the motion of the County for judgment on the merits

of the Title VII claim, and the motion of Tidy and Shivar for dismissal of the § 1983 claims against them on qualified immunity

grounds.

On the ensuing appeals by all defendants, we exercise jurisdiction

over only the determination made by the court in denying the motions

of Shivar and Tidy for judgment on qualified immunity grounds that

on the facts alleged by Wilkie their conduct would have violated her

then clearly established constitutional rights. We affirm that determination. Because we lack primary jurisdiction and decline to exercise

pendent appellate jurisdiction over any other portion of the court's

interlocutory order denying summary judgment, we dismiss the

appeals in all other respects, and remand the case for further proceedings.

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I.

Cosette Wilkie went to work for the County in 1989 as a telecommunicator, a job that entailed staffing the police radio and telephone,

responding to incoming calls, and dispatching equipment and personnel to respond to calls. In November of 1991, she was working the

graveyard shift along with fellow employee Henry Smith. Early in the

morning, Wilkie left her post at the console and went into the

employee break room, leaving Smith at the console. In the minutes

that followed, the call center received a number of radio calls which

were not answered because, having taken a number of antihistamine

pills, Smith was asleep at his post.

This much of the factual background of the unanswered-calls incident at the center of this litigation is undisputed on the summary judgment record. But, just how and why it occurred is hotly disputed on

that record. Wilkie's version, as reflected in her pleading and supporting summary judgment materials, is as follows. When she left the

console to go on a scheduled break, Smith was awake. Later, while

talking with two other officers in the break room, she heard the radio

"pin" signal sound, but did not hear Smith answer the call. She then

asked her fellow officers to use their hand radios to call Smith; when

they did, Smith did not respond. Wilkie then tried to respond to

incoming calls by using the radio in the break room, but it was malfunctioning. She then began answering telephone calls from the break

room and, having figured out that Smith was asleep, reassured callers

that the situation was in control.

The defendants' version, as reflected in their summary judgment

motion and supporting materials, is radically different. Its central

point was that Wilkie set Smith up to embarrass him. Specifically, the

claim was that Smith, who admitted to having taken a dose of antihistamine pills before starting his shift, had asked Wilkie, and she had

agreed, to take care of the incoming calls for a time while he took a

nap, an arrangement asserted to be in keeping with an unwritten policy among the late-shift telecommunicators. Wilkie then waited for

Smith to fall asleep, and only then went to the break room and signaled officers then outside on duty to call in so that their calls would

go unanswered while Smith slept. According to Wilkie's version,

however, there was no such unwritten policy of covering each other

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during partners' naps, she had never napped during her shift, and

events occurred as she had asserted.

Because it was undisputed that a number of calls did go unanswered that night, Tidy as county Emergency Operations Director

investigated. Having interviewed the principals and other officers

both about the napping incident and the alleged napping policy, Tidy

charged Wilkie with having violated the county's Personnel

Ordinance by intentionally abandoning her post, thereby endangering

lives and property, and recommended her discharge. County Manager

Shivar accepted the recommendation and discharged Wilkie. On Wilkie's administrative appeal, the Board upheld her discharge.

Smith received only a written reprimand on the basis of the stated

conclusions of Tidy and Shivar that Smith's nap was at most negligent, not intentional as was Wilkie's misconduct. No one else who

was on the scene received any punishment.

Wilkie then brought this action in federal district court, alleging

parallel § 1983 and Title VII equal protection and sex discrimination

claims and state-law breach of contract claims against the Board,

Tidy, and Shivar. All defendants moved for summary judgment on the

merits of all the claims and Tidy and Shivar also sought dismissal of

the § 1983 claim on qualified immunity grounds. The district court

dismissed the Title VII claim against the individual defendants on the

basis that they were not "employers" under the statute and dismissed

the pendent state law claims against all defendants on the merits, but

denied the Board's motion to dismiss the Title VII claim against it,

the motion of all defendants to dismiss the § 1983 claims on the merits, and the motions of Tidy and Shivar to dismiss on qualified immunity grounds the § 1983 claims against them.

The Board, Tidy, and Shivar then jointly noticed appeals from the

district court's order denying their respective motions for summary

judgment.1

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1 Wilkie did not appeal from the dismissals of her Title VII and pendent

state-law claims.

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II.

We first consider the scope of our jurisdiction to review the various

parts of the order from which appeals were noticed. As an interlocutory order denying summary judgment, it is not immediately appealable except to the extent it rejects the individual defendants' claims

of entitlement to pre-trial dismissal of the § 1983 claims on qualified

immunity grounds. Mitchell v. Forsyth, 472 U.S. 511, (1985). And,

with respect to that portion of the order, our appellate jurisdiction is

further confined to reviewing any "purely legal" determination on

which it rests that the facts as alleged by the non-movant and assumed

by the court "support a claim of violation of clearly established law."

Johnson v. Jones, 115 S. Ct. 2151, 2156 (1995) (quoting Mitchell,

472 U.S. at 528 n.9). Insofar as the order also rests on a "fact-related"

determination that genuine issues of material fact respecting the qualified immunity defense preclude summary judgment, that determination is not reviewable on this interlocutory appeal. Johnson,, 115 S.

Ct. at 2153, 2156-58; Winfield v. Bass, ___ F.3d ___, ___, No. 94-

7346, slip op. at 7, 8 (4th Cir. Jan. 31, 1997) (en banc).

Initially therefore confining our review to the appealable aspects of

the court's qualified immunity ruling, we must dismiss the defendants' attempted appeals from all other portions of the order: that is,

the denial of the Board's motion to dismiss the Title VII claim on the

merits and the motions of all defendants to dismiss the § 1983 claims

on the merits. We have no primary jurisdiction over those attempted

appeals, and we decline defendants' suggestion that we should exercise pendent appellate jurisdiction over them; the issues are not, as

they suggest, inextricably intertwined.

Turning then to the appeals of Tidy and Shivar from denial of their

qualified immunity-based motion, we first observe that the denial was

rested both on an appealable purely legal determination and an unappealable fact-related determination. See Behrens v. Pelletier, 116 S.

Ct. 834, 842 (1996) (pointing out that both determinations may be

embodied in such denial orders). First addressing the purely legal

issue, the district court properly assumed the truth of the non-movant

Wilkie's factual account of the unanswered-call incident as alleged in

her pleading and elaborated in discovery materials. Critically, these

included the facts that her co-employee Smith, having taken sleep-

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inducing medication before going on duty, then went to sleep while

on duty and while Wilkie, unaware of his medicated condition, was

on a scheduled break; that Smith's napping on the job was not by any

pre-arrangement with Wilkie pursuant to an unwritten policy for such

covering conduct, there being no such policy; that Tidy and Shivar,

with knowledge that Smith had deliberately taken sleep-inducing

medication before going on duty and as a result had then gone to

sleep while alone at the console, nevertheless caused Wilkie to be

fired for her conduct in leaving Smith alone at the console but only

caused Smith to be reprimanded for his conduct; and that this disparate treatment was motivated by the different genders of the two. JA

188-94.2 Summing up, the court concluded that Wilkie had

gone beyond simply articulating a violation at the general

level and alleged the infringement of a particularized right

. . . . Specifically, [she] alleged that, due to her gender, she

was suspended and then discharged while a similarly situated, male co-worker who engaged in misconduct of comparable seriousness received only a reprimand.

JA 196. And, on this basis, the court held that

Under settled case law, . . . § 1983 afford[s] public employees with [sic] a particularized right to be free from disparate

discipline based on certain characteristics, including gender.

. . . Thus, a reasonable official would recognize that such

action violated clearly established law.

Id.

The court then turned to the further question whether there were

genuine issues of material fact respecting the qualified immunity

defense and concluded that there were: "there are genuine issues of

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2 The court's detailed recitation and assumption of the relevant facts for

summary judgment purposes was mainly done in establishing the factual

predicates for ruling on the defendants' motions to dismiss the Title VII

and § 1983 claims on the merits. But the facts as assumed for that purpose were then clearly the facts expressly assumed by the court in ruling

on the qualified immunity defense. See JA 194-96.

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historical fact respecting [defendants'] conduct, . . . which make summary judgment based on qualified immunity inappropriate" in

advance of trial. JA 196.

On the ensuing interlocutory appeals of Tidy and Shivar from the

order denying their qualified immunity-based motion, we may, as

indicated, review only the district court's purely legal determination

and not its fact-related genuine issue determination. See Behrens, 116

S. Ct. at 842 (pointing out that where denial order is based on both

determinations, proper procedure is to review legal determination and

decline to review fact-related). And, because that purely legal issue

is not inextricably intertwined with the fact-related issue but may be

addressed independently as an abstract legal question, we decline to

exercise pendent appellate jurisdiction to review the genuine-issue

determination. See Johnson, 165 S. Ct. at 2159.

III.

Reviewing only the district court's purely legal determination as

we have identified it, we affirm that determination.

Our review of denials of summary judgment is de novo, United

States v. Carolina Transformer Co., 978 F.2d 832, 835 (4th Cir.

1992), and in conducting it with respect to this narrow issue, we "take

as given" those facts expressly identified by the district court as the

predicates for its purely legal ruling and we assume the same "set of

facts" in addressing the issue de novo. Johnson, 115 S. Ct. at 2159.

Cf. Winfield, ___ F.3d at #6D6D 6D#, slip op. at 16-18 (holding that where

district court does not expressly identify the predicate facts for its ruling, court of appeals should undertake independent review of record

to identify the proper factual predicate).

Assuming that same set of facts, we agree with the district court

that they would show a violation of clearly established constitutional

right of which reasonable officials in the positions of the individual

defendants would have known. See Anderson v. Creighton, 483 U.S.

635 (1987). As the district court held, the equal protection right of a

public employee not to be subjected because of her (or his) gender to

more unfavorable discipline than that imposed upon a fellow

employee of the opposite gender for misconduct of comparable seri-

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ousness is and was at the time in issue clearly established as one vindicable by legal action under § 1983. See Moore v. City of Charlotte,

754 F.2d 1100, 1107 (4th Cir. 1985) (recognizing parallel right under

Title VII, but reversing for clearly erroneous finding of comparable

seriousness); 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). And, as the court further, and properly, concluded, the

facts as alleged by Wilkie would, if proven, support a finding of violation of that right.

The defendants challenge that legal conclusion on two principal

grounds. We take them in order.

The first contention is that the two conceded acts of misconduct by

Wilkie and Smith respectively were not, as a matter of law, of comparable seriousness: Wilkie's involving an intentional act in leaving the

console, Smith's being the merely negligent act of falling asleep

while at the console. But, as the district court pointed out, when, as

was proper, Wilkie's version of the critical facts rather than the defendants' is assumed for purposes of the motion, the acts of misconduct

become essentially indistinguishable in culpability. Smith's conduct

in intentionally taking sleep-inducing medication before going on

duty without advising his graveyard-shift partner or others that to

leave him alone at the console might result in its being unattended is

at least, if not more, culpable than Wilkie's conduct in intentionally

leaving the console to be attended by only one person, but a person

then awake and under no known special danger of falling asleep.

The second contention is related: that whatever the true facts of the

matter, Tidy and Shivar could not as a matter of law be charged with

a knowing violation of Wilkie's clearly established right if they

believed, though erroneously, that her misconduct was significantly

more serious than Smith's. They are right on the legal principle, see

e.g., Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181,

1186 (11th Cir. 1984), but again wrong on its application to the facts

as properly assumed by the district court. For, as that court pointed

out, it is actually undisputed that the two individual defendants knew

that Smith had intentionally taken the medication before going on

late-shift duty and had knowingly failed to advise anyone of the spe-

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cial risk to his ability to attend the console alone that this entailed. JA

192. The district court did not therefore err in concluding that this

knowledge undercut the basis upon which the defendants contended

that as a matter of law their assessment of the relative culpability of

the two was a reasonable one and that they could not therefore be

found knowingly to have violated Wilkie's right to nondiscriminatory treatment.

IV.

We affirm the district court's determination that on the facts

assumed for purposes of the summary judgment motion, the individual defendants' conduct would have violated Wilkie's clearly established right to non-discriminatory treatment of which reasonable

officers in their positions would have known. We decline to review

the court's fact-related determination in denying the qualified

immunity/summary judgment motion that genuine issues of material

fact respecting that defense exist and require resolution by trial. We

dismiss the appeals of all defendants from all other portions of the

district court's order denying summary judgment, and we remand the

case to the district court for further proceedings consistent with this

opinion.

SO ORDERED

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