Filed: May 01, 2015
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-2320 KIRBY B. MCZEKE, Plaintiff - Appellant, v. HORRY COUNTY, Defendant - Appellee. Appeal from the United States District Court for the District of South Carolina, at Florence. R. Bryan Harwell, District Judge. (4:10-cv-02944-RBH) Argued: January 27, 2015 Decided: May 1, 2015 Before WILKINSON, KING, and DUNCAN, Circuit Judges. Affirmed by unpublished opinion. Judge Duncan wrote the majority opinion, in which Judge Wilkinso
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-2320 KIRBY B. MCZEKE, Plaintiff - Appellant, v. HORRY COUNTY, Defendant - Appellee. Appeal from the United States District Court for the District of South Carolina, at Florence. R. Bryan Harwell, District Judge. (4:10-cv-02944-RBH) Argued: January 27, 2015 Decided: May 1, 2015 Before WILKINSON, KING, and DUNCAN, Circuit Judges. Affirmed by unpublished opinion. Judge Duncan wrote the majority opinion, in which Judge Wilkinson..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-2320
KIRBY B. MCZEKE,
Plaintiff - Appellant,
v.
HORRY COUNTY,
Defendant - Appellee.
Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:10-cv-02944-RBH)
Argued: January 27, 2015 Decided: May 1, 2015
Before WILKINSON, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished opinion. Judge Duncan wrote the
majority opinion, in which Judge Wilkinson joined. Judge King
wrote a dissenting opinion.
ARGUED: Julius Wistar Babb, IV, J. LEWIS CROMER & ASSOCIATES,
L.L.C., Columbia, South Carolina, for Appellant. Mark W. Buyck,
III, WILLCOX, BUYCK & WILLIAMS, P.A., Florence, South Carolina,
for Appellee. ON BRIEF: J. Lewis Cromer, J. LEWIS CROMER &
ASSOCIATES, L.L.C., Columbia, South Carolina, for Appellant.
Unpublished opinions are not binding precedent in this circuit.
DUNCAN, Circuit Judge:
Kirby McZeke, an African-American woman, is a former
employee of the Magistrate’s office in Horry County, South
Carolina. She filed this action pursuant to Title VII of the
Civil Rights Act of 1964 (codified as amended at 42 U.S.C.
§§ 2000e et seq.) (“Title VII”), alleging that Mark Harris,
Magistrate Judge, unlawfully terminated her employment on the
basis of her race. The district court granted summary judgment
in favor of the County, and McZeke appealed. Finding no error,
we affirm.
I.
McZeke served as an administrative assistant to the Horry
County Magistrate Judge for over twenty years without incident.
Shortly after becoming Magistrate Judge and McZeke’s supervisor
on July 1, 2008, however, Judge Harris initiated disciplinary
proceedings against McZeke for, among other things, “divulg[ing]
information on a General Sessions Bench Warrant to the
defendant.” J.A. 29. We draw the following facts from McZeke’s
narrative.
In June 2008--before Judge Harris became the Magistrate--
police officer Matthew Stevenson informed McZeke that he had an
outstanding arrest warrant for Don Herring. On learning that
McZeke expected Herring to visit the Magistrate’s office on
2
another matter, Stevenson asked her to do three things: alert
him when Herring arrived; inform Herring of the warrant for his
arrest; and hold Herring until Stevenson got there. McZeke did
only one of those things. Because McZeke was preparing to leave
for the day when Herring appeared at the Magistrate’s office,
she did not inform Stevenson of Herring’s arrival. Rather, she
told Herring that there was an outstanding warrant for his
arrest and that Officer Stevenson had asked her to hold Herring
in her office until Stevenson arrived to serve the warrant. She
further said that she did not have “holding power” and could not
ask Herring to wait, so she advised him to visit the Solicitor’s
office the next morning. She never informed Stevenson of her
conversation with Herring, and Herring did not go to the
Solicitor’s office the following morning. Nearly two months
later, Officer Stevenson found Herring under a bed in his home
and arrested him there.
Having learned of the incident with Herring, on September
25, 2008, Judge Harris issued a disciplinary report citing
McZeke for, in relevant part, “[d]ivulging or misusing
confidential information,” and suspended her for two days. 1 J.A.
1
Judge Harris also reprimanded McZeke for, in an unrelated
incident, “[t]he use of abusive language towards a fellow
employee or member of the general public while performing
official duties as a County employee.” J.A. 28. In response,
(Continued)
3
28. The report stated that “McZeke divulged information on a
General Sessions Bench Warrant to the defendant” and provided
that if a similar incident were to occur again, the consequence
would be “TERMINATION.” J.A. 29. Roughly seven months later,
McZeke again divulged information regarding an unserved arrest
warrant, this time to a defendant’s mother, who was a personal
friend.
In April 2009, Officer Bernard Grate, after conducting an
investigation of a drug-related offense with a confidential
informant, obtained an arrest warrant for Anton Graham. Officer
Grate discussed the warrant with McZeke because they both knew
Graham’s family personally. In fact, McZeke later testified in
a deposition that Graham’s mother, Johnnie Mae Graham, “is [her]
best friend.” J.A. 53.
McZeke prepared the arrest warrant for Graham on April 20,
2009. Early the following morning, Officer Grate and others
attempted to serve the warrant on Graham at his mother’s house
but did not find him there. Mrs. Graham called McZeke later
that morning and asked her “in confiden[ce]” why there was a
warrant for her son. J.A. 59. McZeke testified that she “told
her it was a drug warrant.” J.A. 59. While Anton Graham
McZeke acknowledged the incident and stated: “I’m in agreement
w[ith] the abusive language suspension.” J.A. 29.
4
remained at large, the confidential informant who assisted
Officer Grate in his investigation of Graham telephoned Officer
Grate to say that Graham had contacted him, asking what he knew
about the warrant and accusing him of assisting law enforcement.
Judge Harris took steps to end McZeke’s employment because
of her action. He first offered her the option to resign so as
not to foreclose the possibility of future employment with Horry
County. When McZeke informed Judge Harris that she would not
voluntarily resign, he presented her with a termination letter.
Several months later, Judge Harris hired a white woman to
replace McZeke.
In November 2010, McZeke filed a complaint against Horry
County alleging that Judge Harris fired her for racially
discriminatory reasons. Horry County moved for summary
judgment, arguing that McZeke had failed to establish a prima
facie case of race discrimination because she failed to show
that she was meeting Judge Harris’s legitimate expectations.
The magistrate judge recommended denying Horry County’s summary
judgment motion on the grounds that “issues of fact exist as to
whether Judge Harris ever communicated to [McZeke] . . . his
expectations” regarding her employment, and “the reason for
[McZeke’s earlier] suspension was somewhat vague.” J.A. 278.
The district court rejected the Magistrate Judge’s
recommendation and granted summary judgment in favor of Horry
5
County. The court held that McZeke could not establish a claim
of discriminatory termination based on race because she could
not establish that, at the time of her termination, she was
meeting the legitimate expectations of her employer. The court
reasoned that the disciplinary report had put McZeke on notice
that Judge Harris expected her not to divulge information
regarding bench warrants, and despite that notice, McZeke
“plainly acknowledged divulging information regarding [the]
bench warrant” for Graham. McZeke v. Horry Cnty., No. 4:10-cv-
02944-RBH, 2013 WL 5434082, at *3 (D.S.C. Sept. 27, 2013).
McZeke now appeals that decision.
II.
The sole question before us is whether McZeke was meeting
the legitimate expectations of her employer when she was fired. 2
2
Because McZeke did not offer direct evidence of
discrimination, she had to make out a prima facie case of
discrimination under McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973). See Holland v. Washington Homes, Inc.,
487 F.3d
208, 213–14 (4th Cir. 2007). To make out such a case, she had
to show that (1) she belongs to a protected class; (2) she
suffered an adverse employment action; (3) at the time of the
adverse action, she was performing her job duties at a level
that met her employer’s legitimate expectations; and (4) the
position remained open or was filled by a similarly qualified
applicant outside the protected class.
Id. at 214 (citing
McDonnell Douglas
Corp., 411 U.S. at 802). The parties did not
below, and do not now dispute that McZeke established the first,
second, and fourth prongs of her prima facie case. Therefore,
the district court’s review was limited to the third prong--
(Continued)
6
We have no difficulty concluding on these facts that she was
not. McZeke does not dispute that Judge Harris had the
authority to fire her. She does not dispute that on September
25, 2008, Judge Harris issued a disciplinary report against her
in writing, which warned her not to divulge information about
bench warrants. And, McZeke does not dispute that seven months
later, she did precisely that: she disclosed information on a
bench warrant by informing her best friend that the arrest
warrant for her friend’s son was for a drug-related offense.
Even viewing these facts in the light most favorable to McZeke,
she was not fulfilling Judge Harris’s expectations when she was
terminated.
In addition, the legitimacy of Judge Harris’s expectation
that McZeke keep warrant information confidential is confirmed
by the facts. McZeke’s disclosure may have caused tangible
harm: after she shared the information about the Graham warrant,
Graham contacted the confidential informant and accused him of
assisting the police. Even if Judge Harris had not explicitly
warned McZeke against divulging warrant information, he might
well have been justified in terminating her employment because
whether McZeke was meeting Judge Harris’s legitimate
expectations when he fired her. Our review is also so limited,
and we consider the question de novo. See Henry v. Purnell, 652
F.3d 524, 531 (4th Cir. 2011) (en banc).
7
she endangered the confidential informant by disclosing that the
arrest warrant was drug-related.
McZeke’s arguments to the contrary are inapposite. She
contends that “the language of the Disciplinary Report for the
suspension d[id] not provide . . . notice of Judge Harris’s
expectations.” Appellant’s Br. at 11. The report speaks for
itself. It cited her for “[d]ivulging or misusing confidential
information,” and it explained that McZeke had done so by
“divulg[ing] information on a General Sessions Bench Warrant to
the defendant.” J.A. 28–29.
McZeke also argues that her performance would have met the
legitimate expectations of a former supervisor. See Appellant’s
Br. at 27. This argument fails because “[i]t is the perception
of the decision maker which is relevant” when determining
whether a plaintiff’s job performance met her employer’s
legitimate expectations. Tinsley v. First Union Nat’l Bank, 155
F.3d 435, 444 (4th Cir. 1998), overruled on other grounds by
Nat’l R.R. Passenger Corp. v. Morgan,
536 U.S. 101 (2002).
Our precedent in Warch v. Ohio Cas. Ins. Co., 435 F.3d 510
(4th Cir. 2006), confirms our view that McZeke failed to meet
Judge Harris’s legitimate expectations. In that case, we found
that the plaintiff failed to show that he was meeting his
employer’s legitimate expectations,
id. at 518, where the
employer had previously reprimanded the plaintiff “based on
8
concrete, specific observations,” id. at 517, and the plaintiff
continued to perform contrary to those expectations,
id. at 512–
13. Having failed to heed Judge Harris’s legitimate
expectations and written warning not to divulge warrant
information, McZeke cannot establish a prima facie case of
discriminatory discharge under Title VII.
III.
For the foregoing reasons, the grant of summary judgment to
Horry County on McZeke’s Title VII claim is
AFFIRMED.
9
KING, Circuit Judge, dissenting:
With all respect for my good friends in the panel majority,
I am entirely unconvinced that this Title VII race
discrimination case is as black and white as the majority
suggests. Viewing the facts in the light most favorable to
McZeke, a reasonable jury could readily conclude that McZeke was
terminated because of her race. In these circumstances, I am
satisfied to adopt the well-crafted Report and Recommendation of
the federal magistrate judge denying summary judgment to Horry
County. See McZeke v. Horry Cnty., No. 4:10-cv-02944 (D.S.C.
Aug. 8, 2013), ECF No. 70. I would therefore vacate and remand
for further proceedings, that is, a jury trial on the merits.
I respectfully dissent.
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