UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-2030

LESIA MCCOLLOUGH,

Plaintiff - Appellant,

v.

THE TOWN OF SOUTHERN PINES; JOHN LETTENEY, in his official 

capacity as Chief of Police and in his individual capacity,

Defendants - Appellees,

and

REAGAN PARSONS, in his official capacity as Town Manager and 

in his individual capacity,

Defendant.

Appeal from the United States District Court for the Middle 

District of North Carolina, at Greensboro. William L. Osteen, 

Jr., District Judge. (1:09-cv-00192-WO-WWD)

Submitted: June 28, 2011 Decided: July 19, 2011

Before SHEDD, DUNCAN, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Stephen A. Boyce, STEPHEN A. BOYCE, ATTORNEY AT LAW, Greensboro, 

North Carolina, for Appellant. M. Robin Davis, JACKSON LEWIS 

L.L.P., Cary, North Carolina, for Appellees.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Lesia McCollough appeals the district court’s order 

granting summary judgment for Defendants, The Town of Southern 

Pines and Chief of Police John Letteney, and dismissing her 

employment discrimination action. On appeal, McCollough argues

that she established a prima facie case of discrimination, 

specifically disparate disciplinary treatment based on sex, and 

that Chief Letteney is not entitled to qualified immunity on her 

42 U.S.C. § 1983 (2006) equal protection claim.1

We review a district court’s grant of summary judgment 

de novo, “viewing the facts and the reasonable inferences drawn 

therefrom in the light most favorable to the nonmoving party.” 

Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008); see also

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). 

Summary judgment is proper “if the movant shows that there is no 

genuine dispute as to any material fact and the movant is 

entitled to judgment as a matter of law.” Fed. R. Civ. P. 

56(a). If the moving party sufficiently supports its motion for 

 Finding no 

error, we affirm.

 1 McCollough has forfeited appellate review of her remaining 

claims by failing to raise them in her opening brief. See

Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir. 

1999). To the extent she seeks to raise a claim of constructive 

discharge for the first time on appeal, that claim is not 

properly before us. See Muth v. United States, 1 F.3d 246, 250 

(4th Cir. 1993).
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summary judgment, the nonmoving party must demonstrate that 

there are genuine issues of material fact. Emmett, 532 F.3d at 

297. 

Title VII of the Civil Rights Act of 1964, as amended, 

prohibits “discriminat[ion] against any individual with respect 

to h[er] compensation, terms, conditions, or privileges of 

employment, because of such individual’s . . . sex.” 42 

U.S.C.A. § 2000e-2(a)(1) (West 2003). Where there is no direct 

evidence of discrimination, “a plaintiff may proceed under the 

McDonnell Douglas2

Our review of the record leads us to conclude that 

McCollough failed to establish a prima facie case that 

‘pretext’ framework, under which the employee, 

after establishing a prima facie case of discrimination, 

demonstrates that the employer’s proffered permissible reason 

for taking an adverse employment action is actually a pretext 

for discrimination.” Diamond v. Colonial Life & Accident Ins. 

Co., 416 F.3d 310, 318 (4th Cir. 2005) (internal quotation marks 

and brackets omitted). It is well established that, even under 

the McDonnell Douglas burden-shifting scheme, the ultimate 

burden of persuasion remains on the plaintiff at all times. 

Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 

(1981). 

 2 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
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Defendants discriminated against her on the basis of sex where 

none of the male comparators had engaged in similar or more 

serious misconduct. See Cook v. CSX Transp. Corp., 988 F.2d 

507, 511 (4th Cir. 1993) (discussing prima facie case of 

discriminatory discipline). Likewise, we conclude that 

McCollough has failed to demonstrate a prima facie case with 

respect to her § 1983 claim against Chief Letteney. See

Holder v. City of Raleigh, 867 F.2d 823, 828 (4th Cir. 1989)

(“Our analysis with respect to Title VII also governs 

plaintiff’s claims under . . . [§] 1983.”). Because McCollough 

has not asserted a viable constitutional claim against Chief 

Letteney, we have no occasion to consider whether he is entitled 

to assert qualified immunity as a defense. See Wilson v. Layne, 

526 U.S. 603, 609 (1999) (“A court evaluating a claim of 

qualified immunity must first determine whether the plaintiff 

has alleged the deprivation of an actual constitutional right at 

all, and if so, proceed to determine whether that right was 

clearly established at the time of the alleged violation.”) 

(internal quotation marks omitted).

Accordingly, we affirm the judgment of the district 

court. We dispense with oral argument because the facts and 

legal contentions are adequately presented in the materials 
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before the court and argument would not aid the decisional 

process.

AFFIRMED