UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CHERYL W. BARTEE,

Plaintiff-Appellant,

v.

T. NEAL MORRIS, Individually; B. C.

No. 97-1944

ELLIOTT, Individually; T. A. SMITH,

Individually; A. RAY GRIFFIN, JR.,

Individually,

Defendants-Appellees.

Appeal from the United States District Court

for the Western District of Virginia, at Danville.

Jackson L. Kiser, Senior District Judge.

(CA-96-32)

Argued: January 27, 1998

Decided: May 14, 1998

Before ERVIN and MICHAEL, Circuit Judges, and

BRITT, Senior United States District Judge for the

Eastern District of North Carolina, sitting by designation.

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Affirmed by unpublished opinion. Senior Judge Britt wrote the opinion in which Judge Ervin and Judge Michael joined.

_________________________________________________________________

COUNSEL

ARGUED: Sa'ad El-Amin, EL-AMIN & CRAWFORD, Richmond,

Virginia, for Appellant. Yvonne Steenstra Wellford, MALONEY,
HUENNEKENS, PARKS, GECKER & PARSONS, P.C., Richmond,

Virginia, for Appellees. ON BRIEF: Beverly D. Crawford, ELAMIN & CRAWFORD, Richmond, Virginia, for Appellant.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

BRITT, Senior District Judge:

This matter is before the court on appeal of the district court's grant

of summary judgment for Defendants-Appellees. We review the grant

of summary judgment de novo. Jackson v. Kimel, 992 F.2d 1318,

1322 (4th Cir. 1993). Summary judgment is appropriate when there

is no genuine issue as to any material fact. Fed. R. Civ. P. 56(c). Once

a motion for summary judgment is properly made and supported, the

opposing party has the burden of showing that a genuine dispute

exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.

574, 586-87 (1986). Unsupported speculation is not enough to withstand a motion for summary judgment. Ash v. United Parcel Service,

Inc., 800 F.2d 409, 411-12 (4th Cir. 1986).

I. BACKGROUND

Plaintiff-Appellant Cheryl Bartee (Bartee) is a former detective

with the City of Danville Virginia Police Department (Department)

who was allegedly terminated from her position for violating a

Department rule. Chief of Police T. Neal Morris (Morris) hired Bartee

in 1989 and issued her commendations in 1990 and 1992. He nominated her for the Jaycees' Police Officer of the Year Award in 1993,

placed her in charge of the Department's mounted detail in 1994 and

promoted her to detective in 1994.

Bartee filed this suit on 17 June 1996 alleging violations of her

equal protection rights based on gender and her substantive due pro-

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cess rights. Specifically, Bartee claims that her termination was a

disciplinary action that was more severe than that imposed upon "similarly situated" male officers, and that this alleged disparate treatment

denied and deprived her of her "rights, privileges or immunities

secured by federal law. . . ." (Amended Compl.¶¶ 63,67.) She later

stipulated to the dismissal of the substantive due process claim and

only the equal protection claim was before the district court.

Defendants-appellees are employees of the Department and the

City of Danville. Although the suit names four defendants, Bartee

alleged no facts and offered no evidence to demonstrate that police

officers B.C. Elliott or T.A. Smith were involved in her termination.

Therefore, the grant of summary judgement in favor of those

defendants-appellees will be affirmed without further discussion.

On 1 August 1995, Morris recommended to Danville City Manager

A. Ray Griffin (Griffin) that Bartee be terminated for violating a

Department rule of conduct prohibiting the unauthorized tape recording of another person without that person's knowledge. At the time

of the recommendation, Bartee was the only officer to have ever violated this rule of conduct. Bartee testified at her deposition that she

knew that she was violating this rule at the time she tape recorded a

conversation between herself and her supervisor, T.A. Smith (Smith).

The rule Bartee violated reads:

Tape recording the conversation of another person without

informing the other party shall be a prohibited practice

unless it is in conjunction with an investigation sanctioned

by the Chief of Police or the Commonwealth's Attorney.

This applies to all persons employed by the Police Department and covers one-on-one conversations and telephone

conversations. Violations of this rule shall be subject to

severe disciplinary action including dismissal.

Of the forty-six Department rules of conduct, only this rule and one

other expressly provide that violations will result in "severe disciplinary action including dismissal." This particular rule had been in effect

since 1985, four years before the Department hired Bartee.

Bartee argues that while it is true that the Rule she violated was

one of only two which specifically provided for dismissal, Morris tes-

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tified that there were several Department rules which he considered

so serious that conduct constituting a violation of them would warrant

termination and that the absence of specific language referencing termination does not imply that a violation would not result in termination. These other rules included those concerning unbecoming

conduct, immoral conduct, insubordination, abuse of position, and

conduct toward public and Department members and employees.

In an attempt to support her claim of disparate treatment, Bartee

points to two male officers who engaged in insubordinate conduct but

were not terminated. She also proffered evidence that male officers

who were untruthful in investigations and who used excessive force

were not terminated for their conduct. Morris testified at deposition

that these actions created an unfavorable public opinion of the Department, but that he believed them to be less serious than Bartee's

recording of her conversation with Smith.

Bartee also offered evidence of a male officer who received a

lenient disciplinary action for immoral conduct. Morris testified that

this conduct reflected badly upon the Department, but did not state

whether he considered this conduct more or less severe than that of

Bartee.

Finally, Bartee offered evidence of male officers whom she alleged

received more lenient disciplinary actions despite their repeated and

successive violations of Department policy. One officer was involved

in four incidents before being terminated for his failure to respond to

attempts to correct his performance. Another officer was repeatedly

late to work and Department training, found to have acted unprofessionally to a citizen and found to have made an arrest without probable cause before he was recommended for termination. Finally,

Morris testified that one officer was late for duty or failed to report

for duty repeatedly over many months and ultimately was charged

with violating a Department rule by releasing sensitive Department

information. Morris testified that there can be instances where the

cumulative conduct of an officer can justify termination.

It is undisputed that none of the violations for which male officers

were disciplined and upon which Bartee relies to show disparate treatment based on gender, involved the rule Bartee admittedly violated.

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II. DISCUSSION

For the reasons stated below, we affirm the district court's grant of

summary judgment for defendants-appellees.

Bartee's equal protection claim, that she was terminated in lieu of

a less severe punishment because she is female, must be established

through the same proof scheme used to prove claims asserted under

Title VII. Abasiekong v. City of Shelby, 744 F.2d 1055, 1058 (4th Cir.

1984). This scheme requires plaintiff to meet her burden of intentional gender discrimination under the shifting proof method articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),

and modified by this court to fit the disciplinary context in Moore v.

City of Charlotte, 754 F.2d 1100 (4th Cir.), cert. denied, 472 U.S.

1021 (1985). As Moore states, "[t]he most important variables in the

disciplinary context, and the most likely sources of different but nondiscriminatory treatment, are the nature of the offenses committed and

the nature of the punishments imposed." Id. at 1105.

Bartee has offered no direct evidence of gender discrimination, so

she must show that she "engaged in prohibited conduct similar to that

of a person of another . . . sex . . . and that disciplinary measures

enforced against [her] were more severe than those enforced against

the other person." Moore, 754 F.2d at 1105-1106.

Bartee violated a Department rule that no one else had ever violated. Further, she did not present evidence that a male employee had

violated the only other Department rule specifically warning of termination as a sanction. Bartee alludes to the disciplinary treatment of

male officers who violated other rules, yet each of these other rules

provides that a violation may subject a member of the Danville Police

Department to disciplinary action but says nothing about termination.

Morris testified at his deposition, which was filed by defendantsappellees in support of their motion for summary judgment, that the

disciplinary action imposed for a violation of each of these rules

would depend on the circumstances. Morris further testified that there

would be no penalty short of termination for any officer violating the

rule prohibiting recording of conversations.

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Bartee has failed to produce evidence that she and any male counterpart engaged in similar prohibited conduct or that any male officer

committed an offense of "comparable seriousness." As this court has

stated, to determine "comparable seriousness" it is appropriate to give

"at least initial deference to the system of offenses created by the

[employer]." Moore, 754 F.2d at 1108. The fact that some male officers were not discharged for violating other rules which provided for

varying disciplinary action, has no relevance to Bartee's prima facie

case of gender-based disparate treatment. She has simply failed to

produce facts to show that defendants-appellees engaged in "disparity

of treatment from which one could conclude that[Bartee's] discipline

was a product of discrimination." Cook v. CSX Transp. Corp., 988

F.2d 507, 512 (4th Cir. 1993).

Even assuming that Bartee established a prima facie case, she produced no evidence to rebut or prove that defendants-appellees'

offered reasons for termination were anything other than legitimate

and nondiscriminatory. See St. Mary's Honor Center v. Hicks, 509

U.S. 502, 515 (1993). All evidence presented establishes that Bartee

knowingly violated the rule against recording conversations. Morris

and Griffin testified that her admitted violation of this rule was the

reason for her termination. Bartee did not offer any evidence to refute

these statements. In her deposition she stated that she simply believed

that if she had not been female, that she would not have been terminated. She cannot overcome defendants-appellees' articulated legitimate reason for termination with a statement that she simply believes

that she was fired because she is female. Without facts to support this

belief and to support a connection between her gender and her termination, her claim cannot and should not survive summary judgment.

Autry v. North Carolina Dep't of Human Resources, 820 F.2d 1384,

1386 (4th Cir. 1987). Her personal opinion is simply not enough.

Yarnevic v. Brink's Inc., 102 F.3d 753, 757 (4th Cir. 1996); Goldberg

v. B. Green & Co., 836 F.2d 845, 848 (4th Cir. 1988).

The fact that Bartee received many accolades from Morris during

her six years as a Danville Police Officer, including nomination for

Police Officer of the Year, two commendations and a promotion,

make it unlikely that Morris recommended termination based upon

her gender. Amirmokri v. Baltimore Gas & Electric Co., 60 F.3d 1126

(4th Cir. 1995); Tyndall v. National Educ. Ctrs. , 31 F.3d 209 (4th Cir.

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1994). These actions create "a strong inference[that] discrimination

was not a determining factor" in Bartee's termination. Proud v. Stone,

945 F.2d 796 (4th Cir. 1991). Bartee has not refuted this inference.

III. CONCLUSION

Bartee failed to create a genuine issue of material fact as to the ultimate question of whether the defendants-appellees treated her differently than a similarly situated male officer. Assuming that she could

have established a prima facie case of gender discrimination, she has

failed to carry her burden in light of the legitimate nondiscriminatory

reason for termination: her admitted violation of the Department rule

against recording conversations. Accordingly, we affirm the district

court's grant of summary judgment.

AFFIRMED

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