UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

NATALIE CARROLL,

Plaintiff-Appellant,

v.

No. 97-2529

TOWN OF UNIVERSITY PARK,

MARYLAND; ROBERT W. WERGE;

STEPHEN S. BACON,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Joseph H. Young, Senior District Judge.

(CA-96-1626-Y)

Submitted: May 26, 1998

Decided: June 29, 1998

Before HAMILTON and MOTZ, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Mary Ann Ryan, RYAN & COYLE, Laurel, Maryland, for Appellant.

Linda S. Woolf, GOODELL, DEVRIES, LEECH & GRAY, L.L.P.,

Baltimore, Maryland, for Appellees.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Natalie Carroll appeals from the district court's order granting

summary judgment in favor of Defendants in her action brought under

42 U.S.C. § 1983 (1994), and Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e-2, -3 (1994). We affirm the district court's

order.

I.

Carroll began employment as a probationary police officer with the

Town of University Park, Maryland, on January 11, 1993. The police

officer agreement as well as the relevant provisions of the Town ordinances provide that the officer is on probationary status for one year

from the date of employment. Carroll's employment agreement also

provides that, except as required by the Law Enforcement Officer's

Bill of Rights (LEOBR), nothing in the agreement limits the ability

of the Town or the Chief of Police to terminate Carroll's employment.

LEOBR by its terms does not apply to probationary officers. See Md.

Ann. Code art. 27, § 727(b), (c) (1996).

After Carroll began work, the senior officer in charge of the department, Lieutenant Stephen S. Bacon, began to have serious concerns

about Carroll's performance as a probationary officer. This concern

was due to several complaints filed against Carroll by Town citizens,

and due to Carroll's demeanor, argumentativeness, refusal to accept

constructive criticism, refusal to accept responsibility for her conduct,

damaging of police property, and sloppiness in completing paperwork.

Town citizens reported that Carroll overreacted to situations and

was unable to cope with being a small-town officer. In one incident,

Carroll issued fourteen traffic citations to one individual. When

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Bacon attempted to speak with Carroll about this incident, she argued

with him in a raised voice. During her one year as a probationary officer, Carroll received four or five written complaints from citizens, and

numerous telephone complaints which were not pursued, an unusually

high number of citizen complaints to receive over a year's time

according to Mayor Robert Werge.

Carroll also received two dereliction reports, one for unsafe operation of a departmental vehicle, and one for insubordination relating to

her failure to follow instructions in filling out several reports. When

Bacon attempted to speak with Carroll about her failure to follow

instructions, she became insubordinate and argumentative, and she

slammed out of the room.

Bacon prepared Carroll's annual performance review for the period

January 1993 through December 1993. He rated her attitude "unsatisfactory"; stated that she needed improvement in the areas of dependability, quality of work, and relations with others; and stated that

Carroll met standards in the areas of quality of work and initiative.

Carroll's overall performance evaluation was "unsatisfactory." Carroll

did not exceed standards in any area of performance. Bacon noted in

the review that Carroll took daily work occurrences personally; spent

too much time on traffic enforcement; was unable to keep her emotions in check when interacting with the citizens; was unable to communicate with her supervisors; and did not accept constructive

criticism. Bacon recommended that Carroll's appointment as a probationary officer be terminated. On January 2, 1994, the Council passed

a resolution extending Carroll's probationary period for 90 days.

After suffering a work-related injury, Carroll went on disability leave

beginning January 20, 1994.

On January 31, 1994, Carroll through counsel wrote to the Town's

attorney, stating that she believed proper procedures were not followed in extending her probationary period, and also stating that Carroll believed her gender caused her to be treated more harshly than

other officers. In a letter dated March 15, 1994, Carroll advised the

Town that Carroll believed the Town violated her due process rights

in connection with her discharge, and also stated that Carroll was in

the process of filing an EEO complaint based on sex discrimination.

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In a letter dated March 31, 1994, Bacon informed Carroll that her

position as a probationary officer was terminated. 1 After Carroll's termination, the town appointed a permanent Chief of Police who hired

three new probationary officers. One of the officers is a white female,

who is still employed by the Town, and who has consistently received

favorable performance evaluations from Bacon. That female officer

has also received no citizen complaints.

On May 24, 1996, Carroll filed suit against the Town, Bacon, and

Mayor Werge alleging violations of her constitutional rights under 42

U.S.C. § 1983, sex discrimination in violation of Title VII of the Civil

Rights Act of 1964, and retaliatory discharge in violation of Title VII.

The district court granted Defendants motion for summary judgment

as to all counts.

II.

Carroll first contends that Defendants violated her right to procedural due process when they acted to extend her probationary status

for ninety days, and again when they terminated her, without providing any process. Carroll had no property interest in her continued

employment with the Town. Her employment agreement specifically

provided that she was probationary and could be terminated at any

time. The LEOBR, which provides procedural protections for law

enforcement officers related to termination and disciplinary measures,

by its express terms does not apply to probationary officers. See Md.

Ann. Code art. 27, § 727(b), (c). Carroll began her employment with

the Town on January 11, 1993, and her contract specifically provided

that she would be on probationary status for one year. Accordingly,

she was still on probationary status when the Town extended her ini-

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1 Prior to January 23, 1994, the Town Council was responsible for

approving personnel actions involving probationary officers, including

discipline and terminations. However, the Council passed a resolution

which removed the Council's involvement in personnel decisions, and

provided that as of January 23, 1994, authority for making personnel

decisions rested with the Chief of Police. Accordingly, because the Town

Council appointed Bacon to be acting Chief of Police as of January 1994,

the authority to terminate Carroll rested with Bacon, and Town Council

approval was not needed.

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tial probationary status by ninety days on January 3, 1994, and not

within the protections of LEOBR.

Likewise, the Town resolution extending her probationary status by

ninety days simply extended Carroll's initial one-year probationary

period under her employment agreement, and did not change her status as a probationary employee. Nor did Carroll have any right to

have the Town Council approve Bacon's decision to terminate her. In

accordance with a Town resolution in effect as of January 1994,

Bacon had the authority to terminate Carroll without the Town Council's approval. Accordingly, Carroll fails to show that Defendants

denied her due process of law with regard to her extension of probation and her eventual termination. See Gilbert v. Homar, ___ U.S.

___, ___, 117 S. Ct. 1807, 1811 (1997); Cleveland Bd. of Educ. v.

Loudermill, 470 U.S. 532, 538-41 (1985); Jenkins v. Weatherholtz,

909 F.2d 105, 108-09 (4th Cir. 1990).2 

Carroll also contends that she was denied her due process right to

a name-clearing hearing. However, the comments in the dereliction

reports, in the citizen complaints, and in Bacon's performance evaluation were not so stigmatizing that they impugned her"good name,

reputation, honor or integrity." Board of Regents v. Roth, 408 U.S.

564, 573 (1972) (quoting Wisconsin v. Constantineau, 400 U.S. 433,

437 (1971)); Watson v. University of Utah Med. Ctr., 75 F.3d 569,

579 (10th Cir. 1996). Nor did Carroll show that the charges were

false. See Roth, 408 U.S. at 573; Farias v. Bexar County Bd. of

Trustees, 925 F.2d 866, 877-78 (5th Cir. 1991). Accordingly, Carroll

failed to show that she was entitled to a name-clearing hearing.

Carroll's last argument in connection with her due process claim

is that Defendants violated her First Amendment rights when they terminated her after she communicated her concerns about the manner

in which she was discharged and her intent to file a sex discrimination

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2 Carroll argues that the extension of her probationary status was "disciplinary," thus bringing her within the protections of LEOBR. Carroll

cites no authority for this proposition. Moreover, the record shows that

Carroll was never formally disciplined in relation to any citizen complaints or her dereliction reports, and that the probationary extension was

not meant to be a disciplinary measure.

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charge. Carroll's letters through counsel to the Town's attorney only

deal with Carroll's concerns regarding her status as an employee, a

matter only of personal interest. See Connick v. Myers, 461 U.S. 138,

146 (1983); DiMeglio v. Haines, 45 F.3d 790, 805 (4th Cir. 1995).

Accordingly, Carroll fails to show a denial of her First Amendment

rights. See Board of County Cmmr's v. Umbehr, 518 U.S. 668, ___,

116 S. Ct. 2342, 2346-47 (1996); DiMeglio, 45 F.3d at 805.

III.

Carroll contends that she was subject to sex discrimination in violation of Title VII. Carroll fails to make out a prima facie case of sex

discrimination because she fails to show that she was performing satisfactorily. See St. Mary's Honor Ctr. v. Hicks , 509 U.S. 502, 506

(1993). She was often argumentative and insubordinate with her

supervisors, refused to accept responsibility for her actions, damaged

police property several times, and was often late in turning in paperwork or did a sloppy job. She received several formal citizen complaints, as well as several other informal complaints. On one

occasion, she issued fourteen tickets to one individual, and then raised

her voice with her supervisor when he attempted to speak with her

about it. Importantly, Carroll failed to improve her performance after

being counseled.

Carroll also fails to show that similarly situated employees were

treated more favorably. See Hicks, 509 U.S. at 506; McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Carroll relies on the

Town's treatment of probationary officer John Gheen as a comparative. Gheen, hired around the same time as Carroll, also had disciplinary problems. He received a total of nine dereliction reports. On one

occasion, Bacon recommended disciplinary action against Gheen

relating to his failure to follow orders. No formal citizen complaints

were filed against Gheen. Bacon stated that although Gheen had problems during his probationary period, he was generally receptive to

criticism and his performance improved after being counseled. Bacon

rated Gheen's overall performance as "improvement needed," and

recommend that Gheen's probationary period be extended by six

months. The Town Council accepted Bacon's recommendation. In

February 1994, Gheen was involved in a serious car accident. How-

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ever, before he could be disciplined for this accident, he resigned his

employment with the Town.

Gheen and Carroll were treated similarly to the extent that they

both received criticism and dereliction reports from Bacon. Bacon

also recommended that Gheen be formally disciplined on one occasion, something he never did with Carroll. Both Gheen and Carroll

had their probationary periods extended after less than favorable performance reviews from Bacon. In fact, Gheen's probationary status

was extended for a longer period than Carroll's. The Town never had

an opportunity to discipline Gheen or terminate him after his serious

traffic accident because he resigned immediately afterwards. Accordingly, Carroll fails to show that they were treated differently. See

Hicks, 509 U.S. at 506; McDonnell, 411 U.S. at 802.

Even had Carroll made out a prima facie case, however, Carroll

fails to show that the Town's legitimate, non-discriminatory reasons

for terminating her--argumentativeness, insubordination, refusal to

accept responsibility, carelessness with paperwork--were pretextual.

See Texas Dep't of Community Affairs v. Burdine , 450 U.S. 248, 254

(1981); Hicks, 509 U.S. at 507-08.3 Accordingly, Carroll fails to show

that she was subject to discriminatory treatment based on her sex in

violation of Title VII.4

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3 Carroll's equal protection claim is based on the same facts as her sex

discrimination claim under Title VII. Because Carroll fails to show that

she was discriminated against based on her sex in violation of Title VII,

she cannot show that she was denied her right to equal protection. See

Boutros v. Canton Regional Transit Auth., 997 F.2d 198, 202 (6th Cir.

1993); 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).

4 Carroll also contends that the statement of Lorraine Kincaid that it

was her "impression that he [Bacon] did not like to deal with women

police officers" was improperly struck by the district court. The district

court found that Lorraine Kincaid did not have adequate factual support

for this statement. Lorraine Kincaid is the wife of Officer David Kincaid,

and has herself never worked with Bacon. Affidavits submitted in support of a summary judgment motion should be based upon personal

knowledge. See Fed. R. Civ. P. 56(e). Although statements in affidavits

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IV.

As to the claim of retaliatory discharge, even assuming Carroll

made out a prima facie case, the Town came forth with legitimate,

non-discriminatory reasons for terminating her. See Carter v. Ball, 33

F.3d 450, 460 (4th Cir. 1994); Williams v. Cerberonics, Inc., 871 F.2d

452, 457 (4th Cir. 1989). Carroll fails to show that these legitimate

reasons are pretextual, and that retaliation for her threat to file a discrimination claim was the real reason for her termination. See Hicks,

509 U.S. at 514-15.

We affirm the district court's order granting summary judgment to

Defendants. 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

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can include inferences and opinions, those inferences must be based on

personal knowledge and have a factual foundation. See Drake v. Minnesota Mining & Mfg. Co., 134 F.3d 878, 887 (7th Cir. 1998). Here, Lorraine Kincaid failed to provide adequate factual support for her statement

of opinion regarding Bacon, and thus this portion of her affidavit was

properly struck.

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