Filed: Nov. 29, 1995
Latest Update: Mar. 02, 2020
Summary: UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 95-60369 Summary Calendar _ QUINELL SHUMPERT, Plaintiff-Appellant, versus CITY OF FULTON, MISSISSIPPI; BOYCE MCNEECE, Defendants-Appellees. _ Appeal from the United States District Court for the Northern District of Mississippi (1:93CV87-B-D) _ December 15, 1995 Before DAVIS, BARKSDALE, and DeMOSS, Circuit Judges. PER CURIUM:1 Quinell Shumpert appeals the summary judgment granted the City of Fulton in his race-based employment discrimina
Summary: UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 95-60369 Summary Calendar _ QUINELL SHUMPERT, Plaintiff-Appellant, versus CITY OF FULTON, MISSISSIPPI; BOYCE MCNEECE, Defendants-Appellees. _ Appeal from the United States District Court for the Northern District of Mississippi (1:93CV87-B-D) _ December 15, 1995 Before DAVIS, BARKSDALE, and DeMOSS, Circuit Judges. PER CURIUM:1 Quinell Shumpert appeals the summary judgment granted the City of Fulton in his race-based employment discriminat..
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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-60369
Summary Calendar
_____________________
QUINELL SHUMPERT,
Plaintiff-Appellant,
versus
CITY OF FULTON, MISSISSIPPI; BOYCE MCNEECE,
Defendants-Appellees.
________________________________________________
Appeal from the United States District Court
for the Northern District of Mississippi
(1:93CV87-B-D)
________________________________________________
December 15, 1995
Before DAVIS, BARKSDALE, and DeMOSS, Circuit Judges.
PER CURIUM:1
Quinell Shumpert appeals the summary judgment granted the City
of Fulton in his race-based employment discrimination action. We
AFFIRM.
I.
The City hired Shumpert, a black male, as a police officer in
January 1992. He was discharged approximately two months later,
when the City determined that his participation in an extramarital
1
Local Rule 47.5.1 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that rule, the court has determined that this opinion
should not be published.
affair violated the Police Department's regulations governing the
conduct of its officers.
When Shumpert applied for the position with the City's police
department, Alderman Boyce McNeece admittedly commented during a
meeting of the Board of Aldermen to consider Shumpert's application
that, "We [the city] don't need that nigger".2 The Board voted to
hire Shumpert.3
Shumpert alleged that two other aldermen also made racially
derogatory remarks regarding him, and that those remarks were
overheard by Fulton volunteer fireman Joey Steele. In his
deposition, Steele denied that the comments he overheard were
racially derogatory, and denied that they concerned Shumpert.
During his tenure with the Fulton police force, Shumpert
embarked on an extramarital relationship with a female who worked
as a clerk in the Itawamba County Tax Assessor's Office. Shumpert
admitted to the relationship when questioned by Chief of Police Ray
Barrett. Barrett, along with Alderman Cornelius Clemons, met with
Shumpert, explained that his conduct violated the Department's
Regulations, and offered him the option of resigning before being
dismissed, which Shumpert refused. Shumpert was suspended without
2
As the district court noted, McNeece's apparent animosity
toward Shumpert may have originated over an incident that occurred
while Shumpert was employed as a member of the Itawamba Sheriff's
Department, in which Shumpert arrested McNeece's son on a charge of
driving under the influence and refused to drop the charges despite
McNeece's urging.
3
The vote at the meeting was unanimous. However, McNeece later
changed his vote as a matter of record to become the lone
dissenter.
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pay until the next meeting of the Board of Aldermen, at which the
Board voted to terminate his employment.
Shumpert disputes that other officers were fired for pursuing
extramarital relationships. However, Fulton police officer James
Brown had been given the opportunity to resign or be fired for his
extramarital involvement in February 1992. Shumpert asserted that
Brown had in fact been discharged by Barrett because he had not
supported Barrett's candidacy for Police Chief. Brown was white.
II.
Pursuant to 42 U.S.C. § 1981, Shumpert asserts that racial
bias was the actual motivation for his discharge. In the
alternative, pursuant to 42 U.S.C. § 1983, he asserts that,
assuming his extramarital relationship formed the basis for his
dismissal, discipline for such a relationship violated his First
Amendment right to free association.
We review a summary judgment de novo. Berry v. Armstrong
Rubber Co., 989 F.2d 822, 824 (5th Cir. 1993), cert. denied, __
U.S. __,
114 S. Ct. 1067 (1994). While the district court is not
to weigh the evidence or make credibility choices, this, of course,
does not mean that the existence of any fact dispute forecloses
summary judgment. Rather, a genuine dispute must exist regarding
a material fact to preclude summary judgment.
Id. at 824.
A.
Shumpert asserts that, even assuming that the extramarital
relationship was the basis for his discharge, such relationships
are encompassed by the privacy and associational rights protected
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by the First Amendment. He asserts further that the disputed
criminality of the conduct forms a material fact issue.
In Shawgo v. Spradlin, 701 F.2d 470 (5th Cir.), cert. denied,
464 U.S. 965 (1983), this court held that relationships outside of
marriage do not garner absolute constitutional protection.
Specifically, our court found that, when such relationships occur
between government employees, any right to such relations that
might normally exist may be properly tempered by a state's
heightened interest in regulating the conduct of its employees.
Id. at 482-83 (holding that police officers' claim of First
Amendment protection from discipline for their personal, off-duty
association "fails to take into account the fact that the right to
privacy is not unqualified ... and that the state has `more
interest in regulating the activities of its employees than the
activities of the population at large'") (citations omitted).
In Shawgo, the court explained that, to sustain a
constitutional attack on police personnel regulations, a plaintiff
must establish that no rational relationship exists between the
regulation and the safety of people and property that police are
employed to protect. Id. at 483. The regulation at issue is found
in the Police Department's Standard Operating Procedures and
General Rules and Regulations and requires, inter alia, that police
officers maintain their private lives to be "unsullied as an
example to all".4 The City could rationally advance the legitimate
4
Shumpert does not assert that the ethics code is overbroad or
void for vagueness. The regulations provide in pertinent part:
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law enforcement goal of securing the community's confidence in the
integrity of its police officers by having this requirement.
Because the we hold that the conduct for which Shumpert was
dismissed is not protected by the First Amendment in this context,
without regard to whether the conduct was criminally proscribed, no
material fact issue is created by whether Shumpert's extramarital
relationship violated Miss. Code Ann. § 97-29-1.5
B.
We analyze § 1981 claims of race-based discrimination in
employment by using the framework fashioned to analyze such claims
under Title VII. See St. Mary's Honor Center v. Hicks, 113 S. Ct.
2742, 2746-47 n. 1 (1993) (citing Patterson v. McClean Credit
Union,
491 U.S. 164, 186, (1989)). Under that well-established
framework, the plaintiff is burdened with proving a prima facie
case of discrimination by a preponderance of evidence; from the
establishment of the prima facie case, an inference of
Code of Ethics
I WILL keep my private life unsullied as an example
to all; ... Honest in thought and deed in both my
personal and official life, I will be exemplary in
obeying the laws of the land and the regulations of my
department.
Discipline
For the purpose of definition, the following
constitute misconduct.... Engaging in any conduct
unbecoming of a Police Officer.
5
While the parties dispute the application of Miss. Code Ann.
§97-29-1 to Shumpert's conduct, we note that Mississippi criminal
law does proscribe sex between unmarried persons, further
supporting the City's interest in preventing officers from engaging
in such conduct.
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discrimination arises. Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248, 254 (1981). In order to rebut the inference,
the employer must articulate a legitimate, non-discriminatory
reason for the challenged action.
Id. If the defendant has
presented evidence of a legitimate motivation, then, as our cases
make clear, the plaintiff retains the burden of persuasion
regarding intentional discrimination.
Id. at 256.
For evidence that his discharge was racially biased, Shumpert
offers the earlier quoted comment by Alderman McNeece at the
aldermen's meeting during which Shumpert's employment application
was considered. However, even assuming that the statement
establishes racial bias and that the bias continued until the time
Shumpert was dismissed, we cannot say that McNeece's bias caused
Shumpert's dismissal, because McNeece is only one of five aldermen.
See Bowen v. Watkins, 669 F.2d 979, 985 (5th Cir. 1982) (single
vote does not constitute causation when same conclusion would have
been reached without tainted vote).
Shumpert's assertion that witness Steele had overheard two
other aldermen is equally unhelpful to advance his case. As
discussed earlier, Steele did not testify that he heard such
comments, and Shumpert's own subjective assertions are not
sufficient to create a fact issue regarding discriminatory intent.
Elliot v. Group Medical & Surgery Serv., 714 F.2d 556, 567 (5th Cir
1983), cert. denied,
467 U.S. 1215 (1984).6
6
Shumpert's testimony that Steele had told him of hearing the
conversation, and that Steele had, at the time, described
overhearing racially derogatory statements does not create a fact
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Assuming, arguendo, that Shumpert established a prima facie
case, the City provided a legitimate explanation for the
termination of his employment -- Shumpert's admitted violation of
the department's regulations.
Shumpert seeks to discredit this explanation by asserting that
no other officers were similarly dismissed. Shumpert rejects the
defendants' evidence that a white officer, was, in fact, dismissed
for pursuing an extramarital relationship, and asserts, instead,
that the officer's preference for a Chief of Police candidate other
than Barrett motivated Barrett's decision to fire the officer.
Shumpert offers no direct evidence to support this theory, while,
by contrast, the defendants offered a transcript of the interview
during which the other officer's employment was terminated.
In sum, on this issue, there is no material fact dispute, and
the City is entitled to judgment as a matter of law.
III.
For the foregoing reasons, the judgment is
AFFIRMED.
issue. Evidence must be admissible to create an issue of fact.
E.g., Beijing Metals v. Minerals Import/Export, Inc., 993 F.2d 1178
(5th Cir. 1993). The statement would be inadmissible as hearsay,
unless introduced to impeach Steele's testimony, in which case the
evidence could be used only to impeach, not as substantive evidence
of the truth of the matter stated.
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