UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-1404

REBECCA WILLIS,

Plaintiff - Appellant,

v.

TOWN OF MARSHALL, NORTH CAROLINA, a corporation of the State

of North Carolina,

Defendant - Appellee.

Appeal from the United States District Court for the Western

District of North Carolina, at Asheville. Lacy H. Thornburg,

District Judge. (1:02-cv-00217)

Argued: March 26, 2008 Decided: April 30, 2008

Before WILLIAMS, Chief Judge, TRAXLER, Circuit Judge, and David C.

NORTON, Chief United States District Judge for the District of

South Carolina, sitting by designation.

Affirmed in part; reversed and remanded in part by unpublished per

curiam opinion. 

ARGUED: Jonathan Drew Sasser, ELLIS & WINTERS, L.L.P., Raleigh,

North Carolina, for Appellant. Larry Leake, Asheville, North

Carolina; Sandra Moody King, RUSSELL & KING, Asheville, North

Carolina, for Appellee. ON BRIEF: Thomas H. Segars, ELLIS &

WINTERS, L.L.P., Raleigh, North Carolina; Marc C. Tucker, SMITH

MOORE, L.L.P., Raleigh, North Carolina; Katherine Lewis Parker,

AMERICAN CIVIL LIBERTIES UNION OF NORTH CAROLINA, Raleigh, North

Carolina, for Appellant. 
2

_________________

Unpublished opinions are not binding precedent in this circuit.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

The Town of Marshall, North Carolina, hosts regular

Friday-night concerts at the Marshall Depot, the Town’s community

center. Rebecca Willis enjoyed attending the Friday-night events

and dancing to the music provided by local bands. The Town

eventually banned Willis from the Depot upon the recommendation of

the committee in charge of the events. As a result, Willis filed

this § 1983 suit in federal district court, asserting a number of

constitutional claims and seeking a preliminary injunction

requiring the Town to lift the ban. The district court denied

Willis’s motion for a preliminary injunction and subsequently

granted summary judgment in the Town’s favor. On appeal, we

affirmed the grant of summary judgment on most claims, but vacated

and remanded regarding a class-of-one equal protection claim. On

remand, the parties conducted further discovery, and the district

court again granted summary judgment against Willis. Willis now

appeals that order as well as an order declining to sanction the

Town for certain discovery-related conduct. As we explain below,

we affirm the denial of the sanctions motion but reverse the grant

of summary judgment and remand for further proceedings.
1Our summary of the facts is taken, in large part, from our

prior opinion relating to this case. See Willis v. Town of

Marshall, 426 F.3d 251, 253-56 (4th Cir. 2005).

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I.1

A.

In the center of the Town of Marshall is the Marshall Depot,

a former railroad depot leased by the Town for use as a community

center. A committee (“the Committee”) appointed by the Town’s

Board of Aldermen (“the Board”) coordinates events at the Depot.

On Friday nights the Town opens the Depot and sponsors musical

entertainment, permitting local groups to sign up for playing time.

The Friday-night events are for the benefit of the public and are

attended by community members of all ages. During the concerts,

the musicians perform on a stage, which is located in front of rows

of auditorium-style seats where people can sit and listen to the

music. There is no real dance floor in the Depot, but there is a

small area off to the side of the stage and seating area where

people often dance.

Posted on the back wall of the Depot is a list of the Depot’s

“Rules of Behavior” stating:

(1) No Drinking (Alcoholic Beverages); 

(2) No Smoking; 

(3) Shoes and Shirts Required;

(4) No Sitting on Rails; 

(5) No Blocking Doors; 
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(6) No Cases or Instruments Left on Deck; 

(7) No Jamming Inside Depot or on Deck; 

(8) No Unsupervised Children Allowed to Run Loose Around

Building; and

(9) No Soliciting. 

J.A. 89 (internal quotation marks omitted). There are no other

posted rules or regulations regarding dress or appropriate behavior

at the Depot.

Willis lives in Madison County, North Carolina, just outside

the boundaries of Marshall. She regularly attended the

Friday-night concerts, where she particularly enjoyed dancing.

According to the Town’s evidence, Willis danced in a sexually

provocative manner--gyrating and simulating sexual intercourse with

her partner while “hunch[ed]” on the floor. J.A. 53, 56. Some of

the Town’s evidence indicates that Willis wore very short skirts

and would frequently bend over while dancing, exposing her

underwear, her buttocks, and her “private parts.” J.A. 76.

Some community members, concerned about their children being

exposed to Willis’s dancing, complained to members of the

Committee. The Town contends that Committee members repeatedly

asked Willis to dance in a less provocative manner. These requests

were allegedly met with defiance. The Town maintains that rather

than toning down her dancing, Willis began to dance even more

provocatively.
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Willis takes issue with the Town’s view of the facts. Willis

describes her style of dance as “exuberant[] and flamboyant[],”

J.A. 15, but not inappropriate in any way. Willis acknowledges

that she wore short skirts to the Depot, but she contends that she

always wore underwear and pantyhose and thus could not have exposed

her “private parts.” According to Willis, she received only one

warning from a Committee member concerning her conduct at the

Depot. That occurred when Retha Ward told her one night at the

Depot, without elaborating, to “cool it.” J.A. 78 (internal

quotation marks omitted). Willis contends that the only other

person to give her any “warning” later told her that she was only

kidding.

In any event, the Committee ultimately decided to ban Willis

from attending events at the Depot. This decision was conveyed to

Willis by way of a letter from the Town’s mayor. The letter, dated

December 12, 2000, stated: “Due to the inappropriate behavior

exhibited by you and having received previous warnings from the

Marshall Depot Committee it is the consensus of the Committee that

you are banned from the Marshall Depot. This action is effective

as of today’s date.” J.A. 45.

After receiving the banishment letter, Willis contacted an

attorney. Her attorney conveyed to the Board Willis’s willingness

to apologize for any prior inappropriate behavior, to conduct

herself properly, and to abide by any dress code that might be
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adopted if she were permitted to return to the Depot. The Board

declined to lift the banishment, and this action followed.

B.

In her complaint, Willis alleged that the Town violated her

substantive due process rights by permanently banishing her from a

public forum; that the Town violated her First Amendment rights of

free expression, of association, and to receive information by

banning her from the Depot; that the Town deprived her of a liberty

interest without affording her adequate procedural protections;

that the authority upon which the Town relied to banish her was

unconstitutionally vague and overbroad; and that the Town denied

her equal protection of the law by singling her out for banishment

(“the equal protection claim”). Willis also sought entry of a

preliminary injunction requiring the Town to permit her to return

to the Depot. The Town filed a motion to dismiss, and the matter

was referred to a magistrate judge for a report and recommendation.

The magistrate judge recommended that the motion to dismiss be

denied except as to Willis’s claim that her associational rights

were violated. The magistrate judge also recommended that Willis’s

motion for a preliminary injunction be granted. The Town objected

to the magistrate judge’s report and recommendation. 

The district court considered the Town’s objections and

entered an order denying the motion for a preliminary injunction.

And while the Town had yet to file an answer and no discovery had
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been ordered, the district court directed that the Town’s motion to

dismiss would be converted to a motion for summary judgment. The

court gave the parties thirty days to file any additional materials

relevant to consideration of the summary judgment question.

Thirty days after the district court’s order converting the

motion to dismiss to a motion for summary judgment, the Town

submitted a memorandum in support of the granting of summary

judgment, along with additional affidavits. That same day, Willis

filed her memorandum opposing summary judgment, along with

additional affidavits and exhibits. Willis also submitted an

affidavit under Rule 56(f) of the Federal Rules of Civil Procedure,

alleging summary judgment was premature because she did not have

the opportunity to seek discovery on her claims. The affidavit

sufficiently informed the district court of the discovery Willis

needed to oppose the motion for summary judgment.

The district court thereafter granted summary judgment in

favor of the town. See Willis v. Town of Marshall, 293 F. Supp. 2d

608, 622 (W.D.N.C. 2003). The only claim relevant to the present

appeal is the equal protection claim, which the court disposed of

by noting that there was no evidence of persons similarly situated

to Willis who were treated more favorably by the Town because the

record demonstrated that several attendees complained about Willis

and there was no evidence that there were complaints about anyone

else. See id. at 621. As to Willis’s Rule 56(f) motion for
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additional discovery, the district court concluded that because the

summary judgment record established that the Town “had a rational

basis for all of its challenged actions, further discovery in this

case would be fruitless.” Id. 

On appeal, we affirmed the grant of summary judgment except

with regard to the equal protection claim. See Willis v. Town of

Marshall, 426 F.3d 251, 267 (4th Cir. 2005). As to that claim, we

concluded that Willis’s allegations that she did not dance

inappropriately and that she was singled out for punishment while

others who danced or dressed similarly were not punished were

sufficient to support her claim. See id. at 263-64. We explained,

based on the evidence in the record at the time, that “[a]mong

other things, Willis notes that the Town submitted affidavits from

community members who stated that Willis and a dance partner ‘would

hunch on the floor, simulating sexual intercourse.’ The Town,

however, banned only Willis; no action was taken against her

unnamed partner.” Id. at 263 (citation omitted). We ruled that

the absence of evidence that the Town received complaints

concerning any Depot attendee other than Willis did not justify the

grant of summary judgment. See id. at 263-64. In this regard, we

reasoned that “[e]ven assuming that the absence of complaints about

others would establish that Willis was not similarly situated to

the other patrons,” that absence did not authorize the grant of

summary judgment in light of the fact that the existence of such
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complaints was “a matter wholly within the knowledge of the Town”

and Willis had not had the opportunity to conduct discovery

regarding that issue. Id. at 263. Because Willis had alerted the

district court of the need for such discovery through a Rule 56(f)

affidavit, we concluded that the district court had abused its

discretion in denying such discovery. See id. at 264. We

therefore vacated the grant of summary judgment on that claim and

remanded for further proceedings. See id. at 264, 267.

On remand, the parties conducted discovery. Following up on

previously submitted affidavits from Everette Boone, who served on

the Committee and emceed the Friday-night events, and from William

Allen, a regular Depot attendee, alleging that Willis “and her

partner would hunch on the floor [at the Depot], simulating sexual

intercourse,” J.A. 53, 56, Willis served interrogatories on March

20, 2006, asking the Town to “identify all persons with whom [it]

contend[ed] Mrs. Willis engaged in simulated sexual intercourse, as

alleged in the Affidavits of Everette Boone and William Allen.”

J.A. 411-12. On June 14, 2006, seven weeks after responses were

due, three weeks after Willis filed a motion to compel, and one day

after the district court had specifically inquired regarding the

responses, the Town answered that it had not been able to obtain

the requested information but that it was “reported” that Willis

had danced with her son. J.A. 400 (internal quotation marks

omitted). After Willis moved for sanctions, the district court
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found that Town officials had frustrated compliance with discovery,

and the court ordered responses from the Town by August 28, 2006,

threatening the officials with contempt if they did not comply. 

On August 24, 2006, the Town served responses, verified by

then-Mayor Pro Tem Laura Smith, identifying Emmitt Bullman, Dennis

Brown, and Ben Fisher (Willis’s son) as having simulated sexual

intercourse with Willis at the Depot. Responding to further

interrogatories, the Town named Boone, Ward, Bonnie Chandler,

Winston Cook, Aubrey Sams, and Beverly Seivers as the people who

“ha[d] claimed either that [Bullman, Brown, or Fisher] was a dance

partner of Mrs. Willis’s or that Mrs. Willis engaged in simulated

sexual intercourse with such individual.” J.A. 418. Willis

subsequently deposed Bullman and all of the identified witnesses

except Sams, who was deceased when identified by the Town, and

Allen, who died before he could be deposed.

At his deposition, Boone testified that he had never seen any

of Willis’s dance partners dance in a vulgar manner, and he

admitted that the statement in his affidavit that Willis’s partners

hunched and simulated sexual intercourse with her was incorrect.

He continued to maintain, however, that Willis danced in a vulgar

manner. He specifically noted that Willis danced provocatively

with her son, with whom he saw Willis dancing at the Depot “about

two dozen” times. J.A. 925. According to Boone, Fisher would

“gyro[] around a little bit” while Willis danced “[w]ith her legs
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spread” “with her hands under her [breasts],” simulating sexual

intercourse. J.A. 930-31. Chandler corroborated Boone’s testimony

that Willis simulated sexual intercourse with Fisher at the Depot

without Fisher himself ever dancing in a vulgar fashion. Ward,

Cook, and Seivers, however, denied seeing Willis simulate sexual

intercourse at the Depot. Bullman and Fisher (identified by the

Town as dance partners of Willis) and Willis herself denied any

inappropriate dancing. Indeed, Bullman and Fisher both denied ever

dancing with Willis at the Depot. Willis confirmed that she never

danced with her son at the Depot. 

Mayor Pro Tem Smith was also deposed. Although she had

verified the Town’s interrogatory responses, Smith admitted to

having no basis for believing that Brown simulated sexual

intercourse with Willis. Further, her only explanation for

believing that Bullman simulated sexual intercourse with Willis was

that his name had “c[o]me up” at some point “over the years” as

having been caught on videotape doing “some type of inappropriate

dance” with Willis. J.A. 428. 

Following the completion of discovery, Willis moved for

sanctions against the Town, Smith, and Boone. See Fed. R. Civ. P.

37. Willis argued that the Town’s allegation in its interrogatory

response--verified by Smith--that Willis had simulated sexual

intercourse with Brown, Bullman, and Fisher was baseless, and that

Boone himself had admitted the falsity of the allegation in his
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previous affidavit that Willis and her partner had hunched on the

floor simulating intercourse. Willis requested that the Town’s

answer be stricken and that default judgment be entered against the

Town. Willis also requested that the Town, Smith, and Boone be

held liable for the costs caused by their false statements, and

that contempt proceedings be commenced against them. Two days

later, the Town moved for summary judgment.

The district court denied Willis’s motion for sanctions,

finding that the complained-of conduct was not “as egregious as

characterized by [Willis].” Willis v. Town of Marshall, 2007 WL

1100836, at *14 (W.D.N.C. Apr. 12, 2007). The court also granted

the Town’s summary judgment motion. See id. at *13. The court

interpreted our remand “as being limited to whether Willis’s

‘unnamed partner[s]’ danced in a similar fashion to her dancing,”

but nonetheless considered the viability of other legal theories

“in the interest of finality.” Id. at *8 n.6. The court concluded

that no genuine issue of material fact existed regarding the “other

partners” theory because Willis had conceded that none of her dance

partners danced inappropriately. See id. at *9. The district

court further concluded that Willis, as a matter of law, had

refused to conform her conduct after she was warned repeatedly by

the Committee. See id. at *11. Based on that fact, the district

court determined that Willis was not similarly situated to any

other Depot attendee; that even if she had been similarly situated,
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any difference in treatment was not intentional; and even if she

had been intentionally treated differently from other similarly

situated attendees, there was a rational basis for the difference

in treatment. See id. at *11-*13. 

II.

Willis first maintains that the district court erred in

granting summary judgment against her because there were several

genuine issues of material fact relating to her equal protection

claim. We agree.

We review a district court’s grant of summary judgment de

novo, viewing any facts and inferences drawn from them in the light

most favorable to Willis, the nonmoving party. See Evans v. Techs.

Applications & Serv. Co., 80 F.3d 954, 958 (4th Cir. 1996).

“Credibility determinations, the weighing of the evidence, and the

drawing of legitimate inferences from the facts are jury functions,

not those of a judge.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 255 (1986). Therefore, although we must consider the record

in its entirety, we “must disregard all evidence favorable to the

moving party that the jury is not required to believe.” Reeves v.

Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151 (2000). Thus,

we consider “evidence favoring the nonmovant as well as that

evidence supporting the moving party that is uncontradicted and
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unimpeached, at least to the extent that that evidence comes from

disinterested witnesses.” Id. (internal quotation marks omitted).

The claims at issue here are based on the Equal Protection

Clause of the Fourteenth Amendment, the purpose of which “is to

secure every person within the State’s jurisdiction against

intentional and arbitrary discrimination, whether occasioned by

express terms of a statute or by its improper execution through

duly constituted agents.” Village of Willowbrook v. Olech, 528

U.S. 562, 564 (2000) (per curiam) (internal quotation marks

omitted). The Supreme Court has recognized the validity of “class

of one” Equal Protection claims “where the plaintiff alleges that

she has been intentionally treated differently from others

similarly situated and that there is no rational basis for the

difference in treatment.” Id. For a plaintiff to demonstrate that

she is “similarly situated,” her evidence “must show an extremely

high degree of similarity between [herself] and the persons to whom

[she] compare[s]” herself. Clubside, Inc. v. Valentin, 468 F.3d

144, 159 (2d Cir. 2006). Generally, whether a plaintiff in a

class-of-one equal protection claim is similarly situated to those

who have been treated differently is a factual issue for a jury.

See Clubside, Inc., 468 F.3d at 159; McDonald v. Village of

Winnetka, 371 F.3d 992, 1002 (7th Cir. 2004). 

Willis’s primary theory of liability is that she was similarly

situated to other Depot attendees because, like most other
2Because we hold, for the reasons we will discuss, that

several genuine issues of material fact exist regarding this

theory, we do not address Willis’s argument that genuine issues of

material fact also exist regarding her theory that even if she

danced or dressed inappropriately, she was intentionally treated

differently from various other individuals who behaved

inappropriately at the Depot. We do note, however, that, as was

also true of our prior opinion, our reversal of summary judgment on

the equal protection claim on the basis that genuine issues of fact

exist regarding a particular legal theory should not be interpreted

as a rejection of any theory that we have not specifically

discussed. 

Because we hold that the district court erred in granting

summary judgment on the equal protection claim, we also do not

address Willis’s alternative argument that if summary judgment was

properly granted on her class-of-one claim, it was improperly

granted on her procedural and substantive due process claims.

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attendees, she danced and dressed appropriately. She maintains

that the Town intentionally treated her differently than these

other attendees by banning her from the Depot and that there was no

rational basis for the difference in treatment. We agree with

Willis that several genuine issues of material fact exist regarding

this theory.2

First, several genuine issues of material fact exist regarding

whether Willis danced or dressed inappropriately. The record

contains evidence that Willis’s dancing at the Depot was

appropriate and not unlike other attendees. See, e.g., J.A. 33, 36

(affidavits of Pat and Hugh Mathus stating that Willis’s style and

manner of dancing was appropriate and that others at the Depot

dance in the same manner); J.A. 161 (affidavit of Louise Branam

stating that “there [was] certainly nothing vulgar about” Willis’s
3The record also contained evidence that Willis exposed her

“private parts” at the Depot, but that was contradicted by several

witnesses. See, e.g., J.A. 165 (affidavit of Nancy Noland stating

that Willis “dressed nicely at the Depot,” “always wore pantyhose

under her skirts,” and “never exposed herself” there); J.A. 744-45

(Willis’s deposition testimony that she never exposed herself at

the Depot).

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style of dancing); J.A. 164 (affidavit of Nancy Noland stating that

“there was nothing vulgar or obscene about [Willis’s] dancing”).

While the Town maintains that Willis simulated sexual intercourse

with her son at the Depot, Willis and her son deny that that ever

occurred. Indeed, Willis stated in an affidavit that her son never

even came to the Depot before she was banned, and her son confirmed

that he was never at the Depot at the same time that she was.

 The record also contains evidence that Willis dressed

appropriately at all times at the Depot. See J.A. 33, 36

(affidavits of Pat and Hugh Mathus stating that Willis “dressed no

differently than any other women” at the Depot); J.A. 161-62

(affidavit of Louise Branam stating that Willis “dressed up more

than the other women, in what [she] would call church outfits,”

which included skirts); J.A. 165 (affidavit of Nancy Noland stating

that Willis “dressed nicely at the Depot”). Although the record

does have evidence that Willis’s skirts were so short that her

underwear could be seen when she bent over while dancing,3 it also

includes evidence that Willis “dressed no differently than any

other women” at the Depot, J.A. 33, 36, and that people sometimes

could see the underwear of other women who were dancing at the
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Depot, see J.A. 824-25. Willis’s testimony that no one ever told

her before she was banned that she needed to change the way she

dressed also supports her contention that her dress was neither out

of the ordinary nor inappropriate.

The Town argues that, as a matter of law, Willis was not

similarly situated to other Depot attendees because the Committee

had received complaints about Willis. On this point, Willis

maintains that at least a genuine issue of material fact exists

regarding whether she is similarly situated to Depot attendee A.J.

Bridges. The record shows that Bridges, like Willis, had an

unorthodox dancing style. He was described as “danc[ing] like a

little banty rooster, jumping around,” “bending way over,” and, on

at least one occasion, “[t]apping his feet really loudly.” J.A.

474, 864-65. Smith said of Bridges that he “danced with everyone,

whether [they] wanted to or not.” J.A. 452. The record contains

evidence that the Committee objected to Bridges’s dancing style and

approved a Committee meeting motion providing that Ward would speak

with Bridges about it. When Ward did so and Bridges agreed to

accede to the Committee’s wishes, no sanction was imposed.

The Town also maintains that, as a matter of law, Willis was

not similarly situated to Bridges because, unlike Bridges, she

refused to comply with the Committee’s repeated requests to conform

her conduct to the Committee’s expectations. But genuine issues of

material fact exist on that point as well. First, Willis testified
4Claiming they are self-serving, the Town urges us to

disregard Willis’s statements in her affidavits and deposition

regarding the warnings she received and whether she dressed and

danced appropriately after the warning. That is not the law we

apply at the summary judgment stage, however. In viewing the

record in the light most favorable to the nonmovant, we assume the

credibility of the plaintiff’s evidence unless it is facially

incredible. See Cline v. Wal-Mart Stores, Inc., 144 F.3d 294, 301

(4th Cir. 1998) (reviewing denial of Rule 50(b) motion for judgment

as a matter of law); see also Dennis v. Columbia Colleton Med.

Ctr., 290 F.3d 639, 644 (4th Cir. 2002) (“A Rule 50(b) motion for

judgment as a matter of law follows the same standard as a Rule 56

motion for summary judgment.”). That the plaintiff herself is the

source of forecasted testimony is not sufficient to discredit it as

a matter of law. See Lucas Auto. Eng’g, Inc. v.

Bridgestone/Firestone, Inc., 275 F.3d 762, 768 n.3 (9th Cir. 2001)

(“[T]hat a statement is self-serving bears on its credibility, not

on its cognizability for purposes of establishing a genuine issue

of material fact.”). It is also worth noting that much of the

Town’s evidence is self-serving as well in that it is from members

of the Committee, whose decision to ban Willis is being challenged

in this suit.

Williams v. Giant Food, Inc., 370 F.3d 423, 433 (4th Cir.

2004), on which the Town relies, is inapposite. There we held only

that a plaintiff’s conclusory testimony that she believed her poor

performance evaluations to be “unfair and untrue and incorrect” was

“merely a self-serving opinion that cannot, absent objective

corroboration,” create a genuine issue of fact that could defeat

summary judgment. See id. at 433 (internal quotation marks

omitted). Here, the question of how many warnings Willis received

is one of fact, not opinion. And her assertions that she danced

and dressed appropriately were corroborated by several other

witnesses.

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that she received only a single warning (from Ward) one night at

the Depot to “cool it,” J.A. 741, which Willis did not understand

and which Ward did not clarify.4

 Second, the record contains

evidence that after this comment--as before it--Willis’s dress and

dancing were wholly appropriate, thereby creating a fact issue

regarding whether Willis refused to heed any warning. Boone
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testified in his deposition that he warned Willis that she was

dancing inappropriately, and she told him that “she’d do what she

damn pleased.” J.A. 952. However, Willis denied that any such

warning ever occurred. 

The Town further argues that even if there existed genuine

issues of fact regarding whether Willis was treated differently

from attendees similarly situated to her, Willis failed to create

a genuine factual issue concerning whether such different treatment

was intentional. See Sunrise Corp. of Myrtle Beach v. City of

Myrtle Beach, 420 F.3d 322, 329 (4th Cir. 2005) (“Even if we were

to determine that plaintiffs’ project was similarly situated to

other projects, they would still need to show purposeful

discrimination.”). We disagree. The record contains evidence that

Willis’s dancing and dress were entirely appropriate and yet the

Committee took the extreme step of banning her for life without

ever previously having informed her of what behavior of hers was

objectionable, and that the Board refused to reconsider the ban

even after Willis promised to conduct herself appropriately and in

conformance with whatever rules the Committee would adopt. On

these facts, a reasonable jury could conclude that the Town’s

actions, rather than being guided by concern for the public

welfare, were actually motivated by a conscious desire to single

her out for undeserved punishment. Willis’s and her son’s

statements that they were never even at the Depot at the same time
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further support a reasonable inference that the dispute about

whether Willis had simulated sex with Fisher at the Depot was not

just the result of an honest difference of opinion, but instead,

the result of an accusation that was known to be false. Indeed,

the Town’s allegations in its interrogatory responses that Willis

simulated sexual intercourse with Brown and Bullman, when no basis

existed for those accusations, are consistent with that theory as

well.

Finally, the Town maintains that even if Willis was

intentionally treated differently than similarly situated Depot

attendees, there was a rational basis for the difference in

treatment “due to the fact that only Willis, and no other dancer at

the events, wore inappropriate clothing and, accidentally or not,

exposed her undergarments while engaging in such dance, and refused

to modify her dress and behavior after being warned by the Depot

Committee.” Br. of Appellee at 23. This argument, however,

clearly suffers from the same defect as the Town’s other

arguments--its failure to view the record in the light most

favorable to Willis.

In sum, the factual issues relating to Willis’s equal

protection claim are hotly contested, not the sort that may be

resolved by a judge at the summary judgment stage. We therefore

reverse the grant of summary judgment and remand for further

proceedings.
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III.

Willis next argues that the district court abused its

discretion in denying her motion for sanctions and, in particular,

refusing to enter a default judgment against the Town. We

disagree.

Rule 37 of the Federal Rules of Civil Procedure authorizes a

district court to impose sanctions for discovery-related

misconduct. The parties agree that in determining whether to enter

a default judgment as a discovery sanction, a district court

considers “(1) whether the non-complying party acted in bad faith,

(2) the amount of prejudice that noncompliance caused the

adversary, (3) the need for deterrence of the particular sort of

non-compliance, and (4) whether less drastic sanctions would [be]

effective.” Anderson v. Found. for Advancement, Educ. & Employment

of Am. Indians, 155 F.3d 500, 504 (4th Cir. 1998). We review the

denial of a sanctions request for abuse of discretion. See Hinkle

v. City of Clarksburg, 81 F.3d 416, 426 (4th Cir. 1996).

As we have explained, the facts forming the basis for Willis’s

sanctions motion center around the Town’s filing, at the outset of

this case, of Boone’s affidavit alleging that Willis “and her

partner would hunch on the floor, simulating sexual intercourse,”

J.A. 53, as well as the Town’s subsequent interrogatory responses,

verified by then-Mayor Pro Tem Smith, stating that Willis simulated

sexual intercourse with Brown, Bullman, and her son.
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It is clear that Smith, the sole person verifying the

interrogatory responses for the Town, had no basis for believing

that Willis simulated sexual intercourse with Brown or Bullman.

Smith stated in her deposition that Boone had identified only

Willis’s son as a person with whom Willis had simulated sexual

intercourse. Smith had no idea why Brown was named. And, her only

explanation for Bullman being accused of simulating sexual

intercourse is that his name had come up at some point “over the

years” as having been caught on videotape doing “some type of

inappropriate dance” with Willis. J.A. 428.

As to Boone, he has admitted the incorrectness of his

allegation in his affidavit that Willis “and her partner would

hunch on the floor, simulating sexual intercourse.” J.A. 53.

Willis suggested at oral argument that it was significant that

Boone’s retraction came after we issued an opinion suggesting that

it might be an equal protection violation to punish Willis but not

her partner for such activity. See Willis, 426 F.3d at 263. On

this matter we express no opinion. 

Regardless of whether we might have adjudicated Willis’s

motion differently had we addressed it in the first instance, we do

not believe that the district court’s denial constituted an abuse

of discretion. The Town’s accusing Bullman and especially Brown of

simulating sex with Willis, in the absence of any basis for those

accusations, was certainly improper. But it is unclear what, if
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any, prejudice resulted because even had the allegations regarding

Bullman and Brown not been made, the central issue--whether Willis

danced inappropriately at the Depot--would still have prompted

Willis to depose many, if not all, of these witnesses. As for

Boone, his changing his story from alleging that Willis and her

partner would both hunch, simulating intercourse, to alleging that

Willis spread her legs and motioned in a sexual manner while her

partner “gyroed around a little bit,” J.A. 931, is not such a

radical alteration and could easily have been interpreted by the

district court as the simple mistake of a lay person not realizing

the importance of the particulars in describing the dancing of two

people. Since the district court is more familiar with the

individuals and the background of this particular situation, we

will defer to its good judgment on the appropriateness of

sanctions. 

IV.

In sum, we affirm the denial of Willis’s sanctions motion but

reverse the grant of summary judgment against Willis and remand to

the district court for further proceedings.

AFFIRMED IN PART;

REVERSED AND REMANDED IN PART