Walls v. City of Petersburg

• Decision Date: 06 February 1990
• Docket Number: No. 89-2357,89-2357
• Parties: 52 Fair Empl.Prac.Cas. 39, 52 Empl. Prac. Dec. P 39,602, 58 USLW 2523, 5 Indiv.Empl.Rts.Cas. 455 Teyonda N. WALLS, Plaintiff-Appellant, v. CITY OF PETERSBURG, a Virginia Municipal Corporation; Richard M. Brown, individually and in his official capacity as City Manager of the City of Petersburg; Lawrence R. Nowery, individually and in his official capacity as the Chief of the Bureau of Police of the City of Petersburg, Virginia, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 188

895 F.2d 188

52 Fair Empl.Prac.Cas. 39, 52 Empl. Prac.

Dec. P 39,602,

58 USLW 2523, 5 Indiv.Empl.Rts.Cas. 455

Teyonda N. WALLS, Plaintiff-Appellant, v. CITY OF PETERSBURG, a Virginia Municipal Corporation;

Richard M. Brown, individually and in his official capacity

as City Manager of the City of Petersburg; Lawrence R.

Nowery, individually and in his official capacity as the

Chief of the Bureau of Police of the City of Petersburg,

Virginia, Defendants-Appellees.

No. 89-2357.

United States Court of Appeals, Fourth Circuit.

Argued Oct. 30, 1989.

Decided Feb. 6, 1990.

Mark Sheridan Brennan (Stephen W. Bricker, Bremner, Baber & Janus, Richmond, Va., on brief), for plaintiff-appellant.

Michael Paul Falzone (Charles F. Witthoefft, Dana B. Sykes, Brian K. Jackson, Hirschler, Fleischer, Weinberg, Cox & Allen, P.C., Richmond, Va., on brief), for defendants-appellees.

Before ERVIN, Chief Judge, WIDENER, Circuit Judge, and YOUNG, Senior District Judge for the District of Maryland, sitting by designation.

ERVIN, Chief Judge:

In this action, the plaintiff, Teyonda N. Walls, alleged that the defendants violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000e et seq., and 42 U.S.C. Sec. 1983 in dismissing her from her position with the City of Petersburg ("the City"). Her Title VII cause of action stated that her discharge was racially discriminatory because the City's background questionnaire had a disparate discriminatory impact on blacks such as herself. In her Section 1983 claim, Walls alleged that she was discharged in violation of her constitutionally protected right to privacy, freedom of association, and due process of law.

Walls now appeals from the district court's grant of summary judgment for the defendants on both causes of action. For the reasons discussed below, we affirm.

I.

Walls was hired as the administrator of the City of Petersburg's "Community Diversion Incentive Program" ("CDI") in December 1985. This program provides alternative sentencing for non-violent criminals. In her position, Walls had financial responsibility for the CDI program, oversaw restitution payments, had regular contact with convicted criminals, and was in a position to make recommendations concerning sentencing.

In July 1986, the administration of the program was transferred from the City Manager's Office to the City's Bureau of Police. Starting at that time, defendant Lawrence R. Nowery was named Project Administrator and Captain William A. Vaughan became Walls' immediate supervisor. After the transfer took place, the police department required all CDI employees to undergo the same background check as its other employees. The City had never required background checks of employees working with the CDI program when it was administered by the City Manager's Office.

At the time of the transfer, Walls did not complete a background questionnaire. Upon discovering this in March 1988, Nowery and Vaughan notified her that she would be required to fill out the questionnaire. Walls refused to do so, objecting specifically to four questions:

Question 12: Has any member of your immediate family (father, mother, brother, sister, husband, wife, father-in-law, mother-in-law) ever been arrested and/or convicted of a felony, misdemeanor, or other violation other than a minor traffic violation?

Question 30: List all marriages you have had and the present status thereof: If divorced, annulled or separated, give details of date, offending party as decreed by law, and the reason therefore [sic] on a separate sheet of paper.... List every child born to you.

Question 40: Have you ever had sexual relations with a person of the same sex?

Question 43: Debts: List all outstanding debts or judgments against you or your spouse or for which you are the co-maker?

Because of her refusal to fill out the questionnaire, Nowery suspended Walls without pay and recommended to City Manager Richard M. Brown that Walls be terminated. After determining that the current administrative policy concerning background checks did not apply to Walls, Brown ordered Nowery to reinstate her with backpay. At the same time, however, he promulgated a new policy requiring all current employees in Walls' position to fill out the questionnaire. Walls still refused to comply, and Nowery again recommended termination. On March 18, 1988, Brown terminated her for failure to complete the background questionnaire.

II.

Summary judgment is proper where there is no genuine issue as to any material fact. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). There is no issue for trial unless there is "sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202, 212 (1986). The standard of our review is de novo. Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1127 (4th Cir.1987).

III.

A facially neutral employment practice having a disparate adverse impact upon blacks is unlawful under Title VII unless the employer can prove that the practice is demonstrably related to the job performance. In the seminal case in this area, Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), the Supreme Court held [Title VII] proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited.

Id. at 431, 91 S.Ct. at 853, 28 L.Ed.2d at 164.

The Supreme Court has developed a three-part analysis of disparate impact claims brought under Title VII. First, to establish a prima facie case of discrimination, a plaintiff must show that the facially neutral employment practice had a significantly discriminatory impact. Connecticut v. Teal, 457 U.S. 440, 446, 102 S.Ct. 2525, 2530, 73 L.Ed.2d 130, 137 (1982). Second, if the prima facie case is made, "the employer must then demonstrate that 'any given requirement [has] a manifest relationship to the employment in question,' in order to avoid a finding of discrimination." Id. at 446-447, 102 S.Ct. at 2530-2531 (quoting Griggs ). Third, "(e)ven in such a case, however, the plaintiff may prevail, if he shows that the employer was using the practice as a mere pretext for discrimination." Id. at 447, 102 S.Ct. at 2530.

Walls, in her response to the defendants' motion for summary judgment, submitted statistical evidence showing that blacks are much more likely statistically to have "negative" responses to the objectionable questions than white employees, and that they would therefore be much more likely to be subject to negative personnel actions as a result of the background questionnaire. She did not, however, offer any connection between these statistics and any personnel decisions by the City. Nor did she submit any evidence showing that the City had, in fact, discriminated against blacks because of their answers to these questions.

A plaintiff may use statistical evidence to establish a prima facie violation of Title VII. New York City Transit Authority v. Beazer, 440 U.S. 568, 584, 99 S.Ct. 1355, 1365, 59 L.Ed.2d 587 (1979). The Supreme Court has recently held, however, that "the plaintiff's burden in establishing a prima facie case goes beyond the need to show that there are statistical disparities in the employer's work force." Watson v. Ft. Worth Bank & Trust, 487 U.S. 977, ----, 108 S.Ct. 2777, 2788, 101 L.Ed.2d 827, 845 (1988) (O'Connor, J., plurality opinion of four justices; Justice Kennedy not participating), quoted affirmatively in Wards Cove Packing Co. v. Atonio, --- U.S. ----, 109 S.Ct. 2115, 2124, 104 L.Ed.2d 733 (1989) (5-4 decision with Justice Kennedy participating). Causation must also be proved; "the plaintiff must offer statistical evidence of a kind and degree sufficient to show that the practice in question has caused the exclusion of applicants for jobs or promotions because of their membership in a protected group." Watson, 487 U.S. at ---- - ----, 108 S.Ct. at 2788-79, 101 L.Ed.2d at 845; see also Wards Cove Packing Co., --- U.S. at ----, 109 S.Ct. at 2125, 104 L.Ed.2d at 751 (plaintiffs "will also have to demonstrate that the disparity they complain of is the result of ... the employment practices that they are attacking").

Under Watson and Wards Cove Packing, Co., absent proof of causation, Walls has failed to satisfy her prima facie burden. She bases her claim on the speculation that, had she filled out the form, she would have been subject to some form of adverse job action based on her answers and that, in general, blacks would be subject to such action disproportionately to whites based on a statistical analysis of their likely responses. This is completely speculative. She offers no evidence that anyone, black or white, has ever been terminated or otherwise adversely affected as a result of their answers to the questionnaire. Speculation as to the potential for disparate impact cannot serve as evidence of such impact itself.

IV.

Walls' complaint also alleges that the City's requiring her to answer these questions violates her constitutional rights to privacy, freedom of association, and due process of law under 42 U.S.C. Sec. 1983. Section 1983 provides a remedy to those whose rights have been violated under color of state law. We find that these questions do not infringe in any way upon her freedom of association or her right of due process. Walls has not alleged any facts supporting her claim that the questionnaire violated her right of due process under the fourteenth amendment. In addition, there is no indication in the record that answering these questions would inhibit or limit her associations with others. Walls' right to privacy claim, however, deserves greater...