Ballinger v. North Carolina Agr. Extension Service

Decision Date09 April 1987
Docket NumberNo. 86-2142,86-2142
Citation815 F.2d 1001
Parties43 Fair Empl.Prac.Cas. 808, 43 Empl. Prac. Dec. P 37,039, 38 Ed. Law Rep. 915 Emily Ruth BALLINGER, Plaintiff-Appellant, v. NORTH CAROLINA AGRICULTURAL EXTENSION SERVICE, North Carolina State University; Board of Warren County Commissioners; Warren County; Hugh L. Liner, Chester D. Black, Paul E. Dew, Russell G. King; individually and as Agents of NCAES and NCSU; Bruce R. Poulton, individually and as Chancellor of NCSU; W.J. Harris, Clyde R. Edwards, William T. Skinner, III, Herbert C. Harris, George E. Shearin, Sr., individually and as Warren County Commissioners; Glenwood Newcome, individually and as Agent of Board of Warren County Commission and Other Co-Conspirators here unnamed, individually, Defendants-Appellees.
CourtU.S. Court of Appeals — Fourth Circuit

Max Dewey Ballinger, Greensboro, N.C., for plaintiff-appellant.

Edwin Marion Speas, Jr., Sp. Deputy Atty. Gen., North Carolina Dept. of Justice (Lacy H. Thornburg, Atty. Gen., Raleigh, N.C., on the brief), for defendants-appellees.

Before HALL and WILKINS Circuit Judges, and TIMBERS, United States Circuit Judge for the Second Circuit, sitting by designation.

TIMBERS, Circuit Judge:

Emily Ruth Ballinger ("appellant") appeals from a judgment entered May 22, 1986 in the Eastern District of North Carolina, Terrence W. Boyle, District Judge, which granted summary judgment in favor of appellees North Carolina State University, North Carolina Agricultural Extension Service, Chancellor Bruce R. Poulton, Dr. Hugh L. Liner, Dr. Chester D. Black, Dr. Paul E. Dew and Russell C. King ("appellees") in an action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq. (1982); the Age Discrimination in Employment Act, 29 U.S.C. Sec. 621 et seq. (1982 & Supp. III 1985); 42 U.S.C. Sec. 1985 (1982); 42 U.S.C. Sec. 1983 (1982); and a pendent breach of contract claim. 1

The court held that appellant had failed to establish a prima facie case of discrimination based on sex and, accordingly, was barred from bringing a claim under Title VII. The court also held that appellant had failed to establish a prima facie case of age discrimination under the Age Discrimination in Employment Act ("ADEA"). The court further held that appellant did not have standing to assert a conspiracy claim pursuant to Sec. 1985(3) because she was not a member of a class to which the provisions of that statute applied. The court dismissed appellant's Sec. 1983 claim because the claim was predicated upon the erroneous assumption that her statutory rights had been violated. Finally, the court dismissed the pendent breach of contract claim, holding that appellant was not an intended third-party beneficiary to the contract between the State and the Warren County Board of County Commissioners.

On appeal appellant argues: first, that there is a genuine issue of material fact as to whether appellant established a prima facie case of discrimination based on sex; second, that there is a genuine issue of material fact as to whether appellant established a prima facie case of discrimination based on age; third, that appellant is a member of a class protected by Sec. 1985 and the court therefore erred in dismissing that claim; fourth, that, because there are genuine issues of material fact as to discrimination based on sex and age, the dismissal of appellant's Sec. 1983 claim was error; and, fifth, that the court erred in its determination that appellant was not a third-party beneficiary to the contract.

We hold that there are no genuine issues of material fact as to whether appellant established a prima facie case of discrimination under either Title VII or ADEA. Summary judgment therefore was appropriate. We also hold that appellant has not made a particularized showing of participation in a conspiracy as required by Sec. 1985. We have considered appellant's remaining claims of error and have concluded that they are without merit.

We affirm.

I.

We summarize only those facts believed necessary to an understanding of the issues raised on appeal.

The North Carolina Extension Service ("Extension Service") is a division of the School of Agriculture and Life Sciences of North Carolina State University ("NCSU"). The Extension Service provides agricultural, home economics and other similar services to the people of the State. There are local extension programs in all 100 counties of North Carolina.

At the county level, the supervisor of the local Extension Service is called the County Extension Chairman ("County Chairman"). When a vacancy exists for a County Chairman position the District Extension Chairman meets with the Board of County Commissioners ("the County Board") for the county affected to discuss the qualifications required for the County Chairman for that particular county. A vacancy announcement is then circulated, requesting that qualified persons apply for the position.

Written applications are received and screened by employees of the Extension Service in order to determine which applicants possess the qualifications believed necessary. The applicants selected are then scheduled for interviews.

The interviews are conducted by the Director of the Extension Service, the Associate Director, the Assistant Director for County Operations and the District Extension Chairman for the affected county. These persons develop through consensus a recommendation for presentation to the County Board. The County Board then interviews the person or persons recommended and makes the final hiring decision.

The process established by the Extension Service for filling county chairman positions was followed in selecting the County Chairman for Warren County, the position at issue in the present case. 2

In February 1982 L.C. Cooper, the County Chairman for Warren County, announced his plans to retire from that position. At the time of Cooper's announcement appellant was employed by the Warren County Extension Service as the Home Economics Extension Agent. She was a fifty-five year old white female and had been employed by the Warren County Extension Service for approximately thirty-one years. Russell King was a co-worker of appellant who had been employed by the Warren County Extension Service as Associate Agricultural Extension Agent for approximately two years. King was a thirty-four year old white male. Both appellant and King applied for the position vacated by Cooper.

On March 16 Dr. Dew wrote to both appellant and King informing them that they were to be interviewed on March 23 by the screening panel. This panel, composed of Dr. Dew, Dr. Black and Dr. Liner, interviewed both applicants on that date. At the conclusion of the interviews the screening panel determined that, subject to the County Board's willingness to accept a dual recommendation, it would recommend both appellant and King for the position. On March 30 Dr. Liner inquired of the County Board whether it would accept two recommendations from the screening panel. Dr. Liner refused to reveal the identities of the favored applicants. On April 2 the County Board advised Dr. Liner that it had agreed to receive two recommendations for consideration.

On April 5 the County Board met in executive session and interviewed appellant and King. Dr. Liner attended the interviews as a representative of the Extension Service. During the meeting, but prior to any final decision, a member of the County Board asked Dr. Liner how many women were serving as County Chairmen and about the relative performances of males and females. Dr. Liner indicated that there were six or seven women serving and he understood their average performance to be the same as the average performance of males.

At the conclusion of the interviews the County Board selected King as the Warren County Extension Chairman. Dr. Liner issued a press release announcing King's selection.

Shortly after the announcement appellant filed a grievance pursuant to the personnel policy of the Extension Service. On September 9 a panel was convened to take evidence. The panel found that appellant had been discriminated against on the basis of sex and age. The panel further found that the discrimination had been unintentional. Dr. Black, in his position as Director of the Extension Service, rejected the panel's report and asked it to reconvene for the purpose of making specific factual findings as to the discrimination. The panel reconvened on October 18 and made findings and recommendations. The panel stated that its findings were based on appellant's evidence in view of the lack of any contrary evidence submitted by the Extension Service. On November 15 Dr. Black again rejected the report of the panel. This rejection was ratified by Chancellor Poulton on January 31, 1983.

At the same time that she initiated the grievance procedure, appellant filed a claim of employment discrimination with the Equal Employment Opportunity Commission ("EEOC") which issued a right-to-sue letter on December 9, 1983. The letter was issued by EEOC without making its own findings. 3

On March 8, 1984 the instant action was commenced. The complaint alleged violations of Title VII, ADEA, Secs. 1983 and 1985 of the Civil Rights Act and a pendent breach of contract claim. On March 29, 1985 appellees moved for summary judgment. On May 22, 1986 the motion was granted as to all of appellant's claims. This appeal followed.

For the reasons stated below we affirm the order and judgment of the district court granting summary judgment in favor of appellees.

II.
(A) Standard of Review

The standard that an appellate court applies in reviewing an order which grants summary judgment is the same as that which governs the district court's initial action under Fed.R.Civ.P. 56(c). Summary judgment is proper where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law....

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