Jacqueline K. HURST, Plaintiff-Appellant, v. DISTRICT OF COLUMBIA, Defendant-Appellee.
No. 15-1410
United States Court of Appeals, Fourth Circuit.
Decided: March 7, 2017
Argued: December 9, 2016
PLN fails to show—and nothing in the record indicates—that the 45% reduction was “clearly wrong” or that the district court has committed an “error of law.” Nor does PLN meet the demanding burden of establishing an abuse of discretion on appeal. Given the civil rights issues involved in this case, another judge may have reasonably ordered a higher fee award. However, the reduction applied by the district court was not unreasonable and was well within the bounds of the court‘s broad discretion.
IV.
Accordingly, the district court‘s attorney‘s fee award is
AFFIRMED.
ON BRIEF: Karl A. Racine, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, Loren L. Alikhan, Deputy Solicitor General, Office of the Solicitor General, OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA, Washington, D.C., for Appellee.
Before DUNCAN, AGEE, and HARRIS, Circuit Judges.
Unpublished opinions are not binding precedent in this circuit.
Affirmed by unpublished per curiam opinion.
PER CURIAM:
Plaintiff, Jacqueline Hurst, appeals the district court‘s order granting summary judgment to the District of Columbia (the “District“) in Hurst‘s employment discrimination suit under Title VII of the Civil Rights Act of 1964 (“Title VII“),
I.
In November 2004, Hurst, who is Caucasian, went to work as a youth correctional officer for the District of Columbia Department of Youth Rehabilitation Services (“DYRS“). Hurst‘s position involved “responsibility for the rehabilitation, direct supervision and active positive engagement, and safety and security of youth in the custody of DYRS.” J.A. 37. Her post required her to search for drugs and other contraband, prevent escapes, prepare written reports, maintain records, and serve as
Pursuant to the Child and Youth Safety and Health Omnibus Amendment Act of 2004, the District of Columbia Department of Human Resources (“DCHR“) was tasked with periodically conducting background checks on DYRS employees, like Hurst. See
On June 12, 2009, Hurst signed and gave a check for $4,700 to Dogwood Kennels where she apparently incurred charges for boarding her dog. On the memo line of the check, she wrote “Do Not Cash/IOU” and advised the kennel that her account had insufficient funds. J.A. 21, 236. Five days later, Hurst stopped payment on the check. When the kennel attempted to cash the check, the bank returned the unpaid check to the kennel.
In November 2009, when the kennel still had not received payment, Hurst was arrested and charged with stopping payment on a check for more than $500, in violation of
Hurst pleaded not guilty to the bad check charge related to the kennel. On June 16, 2010, the Circuit Court for Baltimore County placed her on probation before judgment pursuant to section 6-220 of Maryland‘s Code of Criminal Procedure, which authorizes probation before judgment when “a defendant pleads guilty or nolo contendere or is found guilty of” certain crimes. See
In September 2010, Richard Mattiello, a DCHR Compliance Manager, assessed Hurst‘s suitability for continued employment with DYRS, at which time he surveyed details of the bad check charges and concluded Hurst was not suitable for the position of Youth Development Representative. He recommended to DCHR General Counsel that Hurst be removed from her job, explaining:
Ms. Hurst has demonstrated by her conduct that she is not a fit role model for the youth committed to the custody and care of DYRS. It has also been shown that she lacks the sound judgment needed in the position. Finally, her honesty and truthfulness are highly questionable. The position of Youth Development Representative provides services to the District‘s most troubled and at-risk youth. DYRS[‘s] primary mission is to assist the youth committed to its care and custody to become productive adults.
The agency can ill afford to place their clients in the custody and care of an employee who has demonstrated that she cannot be trusted.
J.A. 179.
DCHR issued a Notice of Proposed Adverse Action on October 5, 2010, recommending that Hurst be terminated from her post in 15 days. The notice cited the District‘s Personnel Regulations, which define cause for termination of employment to include an “act or omission which constitutes a criminal offense, whether or not such act or omission results in a conviction.” J.A. 183. The notice specifically referenced Hurst‘s bad check offense and noted the criminal court‘s finding that Hurst was guilty as a prerequisite for the imposition of probation without judgment. The notice informed Hurst that DCHR had determined “she [wa]s not suitable and that her continued employment present[ed] a clear danger to children and youth committed to the custody and care of DYRS and undermine[d] the efficiency of the service.” J.A. 174.
Hurst challenged the proposed termination by seeking administrative review of DCHR‘s recommendation. In accordance with the statutory authority governing the administrative appeals process for District of Columbia employees, a hearing officer at DYRS conducted the administrative review. During the administrative appeals process, Hurst admitted that she had received probation before judgment for the bad check charge, but maintained that she had not actually been found guilty of the crime. The DYRS hearing officer found that Hurst‘s bad check offense did not warrant termination because the verdict of probation before judgment did not amount to a conviction. Accordingly, the hearing officer recommended withdrawing Hurst‘s proposed termination and returning her to active duty.
Nonetheless, in January 2011, Camille Stillwell, Associate Director and Deciding Official for DCHR, issued a Notice of Final Decision, terminating Hurst effective February 1. According to Stillwell, the youth correction officer position required Hurst to exhibit “sound judgment . . . and document incidents truthfully and accurately,” as well as “provide direct services to children and youth who are troubled and at-risk” and “serve as a role model to these youth.” J.A. 251-52. “The government . . . has a right to expect that those employees entrusted with care and safety of vulnerable children and youth not be guilty of serious transgressions of the law, especially when those transgressions involve questions of dishonesty,” Stillwell averred. J.A. 252. And, she noted, although Hurst pled not guilty and received probation before judgment, the court made a “finding . . . of guilt” in this “very recent case.” J.A. 251. Stillwell concluded that Hurst was “not a fit role model” and “lack[ed] the sound judgment, honesty and truthfulness required for her position.” J.A. 248.
Upon exhausting administrative procedures with the Equal Employment Opportunity Commission, Hurst sued the District in the District of Maryland. Hurst alleged in the complaint that her termination constituted race discrimination in violation of Title VII of the Civil Rights Act of 1964,
The District moved for summary judgment, arguing that Hurst could not establish her prima facie case of disparate treatment based upon race because the comparators she identified were not, in
The district court granted summary judgment in favor of the District, holding, inter alia, that Hurst had not shown a similarly situated non-Caucasian employee who was treated more leniently. Of the eight comparators identified in Hurst‘s summary judgment response brief, four of them were not guilty of a felony, while in Hurst‘s case “the [state] court found that her conduct established her culpability of a felony with which she was charged, but deferred imposition of a judgment of guilt, imposing probation instead.” J.A. 59. As to the remaining comparators, the disciplinary actions taken in those instances occurred more than four years prior to Hurst‘s and, therefore, were not temporally proximate. The district court also noted that the record did not show that the other disciplinary decisions were made by the same supervisor or, in some cases, the same agency. Ultimately, the district court concluded that Hurst failed to identify similarly situated comparators and therefore could not establish a prima facie case of disparate treatment based on race.
Hurst noted a timely appeal, and we have jurisdiction under
II.
We review the district court‘s grant of summary judgment de novo, applying the same standard as the district court. Halpern v. Wake Forest Univ. Health Scis., 669 F.3d 454, 460 (4th Cir. 2012). Summary judgment is appropriate “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.”
III.
Title VII makes it unlawful for an employer to “discriminate against any individual . . . because of such individual‘s race.”
The District does not dispute that Hurst satisfies the first prong of the prima facie test. It is on the final two prongs of the relevant inquiry that Hurst founders. She asserts that the District permitted similarly situated African-American DYRS employees to remain on staff after their background checks revealed similar—or worse—criminal offense conduct than Hurst‘s. The African-American DYRS employees Hurst presents as comparators, however, are not similarly situated for purposes of Title VII, and therefore her claim fails.5
“The similarity between comparators and the seriousness of their respective offenses must be clearly established in order to be meaningful.” Lightner v. City of Wilmington, 545 F.3d 260, 265 (4th Cir. 2008). See also Burdine, 450 U.S. at 258 (“[I]t is the plaintiff‘s task to demonstrate that similarly situated employees were not treated equally.“); accord Smith v. Stratus Computer, Inc., 40 F.3d 11, 17 (1st Cir. 1994); accord Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992). That showing typically includes evidence that the employees “dealt with the same supervisor, . . . [were] subject to the same standards[,] and . . . engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct.” Mitchell, 964 F.2d at 583; Radue v. Kimberly-Clark Corp., 219 F.3d 612, 617-18 (7th Cir. 2000) (noting that proper comparator deals with same supervisor, is subject to same standards as plaintiff, and engages in similar conduct), overruled on other grounds by Ortiz v. Werner Enters., Inc., 834 F.3d 760 (7th Cir. 2016). “The most important variables in the disciplinary context, and the most likely sources of different but nondiscriminatory treatment, are the nature of the offenses committed and the nature of the punishments imposed.” Moore v. City of Charlotte, 754 F.2d 1100, 1105 (4th Cir. 1985).
None of the comparators that Hurst discusses on appeal were similarly situated to her. Two of the comparator DYRS employees Hurst identified—M.F.6 and A.R.—are dissimilar because their background checks revealed only criminal offenses that predated their employment at DYRS, while Hurst was found guilty of a felony while she was an employee for DYRS.
Another proposed comparator, D.C., committed a retail theft crime in 2005 that was revealed in a background check in 2010. DCHR concluded that D.C. had shown rehabilitation by not being arrested during the interim years and imposed a nine-day suspension without pay. D.C. is dissimilar to Hurst, who had no similar
Other proposed comparators—P.R. and S.S.—also lack hallmarks of similarity because they had no similar finding of guilt as to their alleged offenses. P.R. was cleared when a routine criminal background check conducted by DCHR revealed no findings of culpability or prior convictions. And while DYRS considered terminating S.S. based on child abuse and neglect findings that predated her employment, there is no evidence in the record that S.S. was ever arrested, much less found guilty of a felony. Hurst, by contrast, was found culpable of the bad check offense and received probation before judgment pursuant to section 6-220 of the Maryland Code of Criminal Procedure, which authorizes probation before judgment when “a defendant pleads guilty or nolo contendere or is found guilty of” certain crimes.
As to two other proposed comparators—M.T. and R.B.—the record was devoid of evidence as to the outcome of any administrative action taken, including whether they were retained by DYRS. This failure of proof precludes meaningful comparison. See Lightner, 545 F.3d at 265.
Hurst also argues that T.G. is a valid comparator, but she failed to present T.G. as a comparator during summary judgment proceedings in the district court.7 Hurst cannot raise T.G. on appeal as a representative comparator when she failed to make that claim below. See United States v. Lavabit, LLC (In re Under Seal), 749 F.3d 276, 285 (4th Cir. 2014) (“When a party in a civil case fails to raise an argument in the lower court and instead raises it for the first time before us, we may reverse only if the newly raised argument establishes fundamental error or a denial of fundamental justice.” (internal quotation marks omitted)). This Court does not consider issues not raised before the district court unless exceptional circumstances exist such that “refusal to consider the newly-raised issue would be plain error or would result in a fundamental miscarriage of justice.” Muth v. United States, 1 F.3d 246, 250 (4th Cir. 1993). See also Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976) (“Absent exceptional circumstances, a federal appellate court does not rule on issues that are not presented to the district court.“). In its summary judgment motion below, the District described fourteen potential comparators, including T.G., explaining why none qualified as similarly situated to Hurst. In her response, Hurst did not mention T.G., nor did she argue that T.G.‘s circumstances supported her disparate discipline claim. On appeal, Hurst seeks to avail herself of comparison to T.G., but makes no effort to show an exceptional circumstance exists to overcome waiver of this point. Simply put, we decline to consider a potential comparator not actually raised before the district court.
For these reasons, there are simply not “enough common features between the individuals to allow [for] a meaningful comparison[.]” Humphries v. CBOCS W., Inc., 474 F.3d 387, 405 (7th Cir. 2007), aff‘d on other grounds, 553 U.S. 442, 128 S.Ct. 1951, 170 L.Ed.2d 864 (2008). Because Hurst failed to forecast sufficient evidence to make a prima facie showing, the district court did not err in finding “no disparity of treatment from which one could conclude that [Hurst‘s] discipline was a product of racial discrimination.” Cook, 988 F.2d at 511.
IV.
Hurst also contends that the district court erred in determining that she had expressly waived a hostile work environment claim and “in not considering direct evidence of race discrimination.” Opening Br. 34. “Hostile environment claims are different in kind from discrete acts [of disparate treatment]. Their very nature involves repeated conduct. . . . [And they] are based on the cumulative effect of individual acts.” Nat‘l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002); see also Chacko v. Patuxent Inst., 429 F.3d 505, 511 n.2 (4th Cir. 2005)
V.
For the aforementioned reasons, we affirm the district court‘s grant of summary judgment to the District.
AFFIRMED