UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

COSETTE WILKIE,
Plaintiff-Appellee,

v.

BOARD OF COMMISSIONERS OF
                                                                   No. 95-2803
CHATHAM COUNTY; BEN SHIVAR; ROD
TIDY, in their official and individual
capacities,
Defendants-Appellants.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
N. Carlton Tilley Jr., District Judge.
(CA-94-463-CV-1)

Argued: September 26, 1996

Decided: March 28, 1997

Before MURNAGHAN and ERVIN, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Affirmed in part, dismissed in part, and remanded by unpublished
opinion. Senior Judge Phillips wrote the opinion, in which Judge
Murnaghan and Judge Ervin joined.

_________________________________________________________________

COUNSEL

ARGUED: James Redfern Morgan, Jr., WOMBLE, CARLYLE,
SANDRIDGE & RICE, P.L.L.C., Winston-Salem, North Carolina,
for Appellants. Thomas Keith Black, FORMAN, MARTH, BLACK
& ANGLE, P.A., Greensboro, North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PHILLIPS, Senior Circuit Judge:

Following discharge from her position as a police"telecommunica-
tor," Cosette Wilkie brought this action against her employer, the
Chatham County (N.C.) Board of Commissioners (the Board), Ron
Tidy, her superior, and Ben Shivar, the County Manager, alleging par-
allel equal protection and sex discrimination claims under 42 U.S.C.
§ 1983 and 42 U.S.C. § 2000(e) et seq.,"Title VII", respectively, and
pendent state law claims of contract and covenant breach. On the
defendants' joined motions for summary judgment, the district court
dismissed on the merits the Title VII claims against Tidy and Shivar
and the pendent state law claims against all defendants, but denied the
motions of all defendants for summary judgment on the merits of the
§ 1983 claims, the motion of the County for judgment on the merits
of the Title VII claim, and the motion of Tidy and Shivar for dis-
missal of the § 1983 claims against them on qualified immunity
grounds.

On the ensuing appeals by all defendants, we exercise jurisdiction
over only the determination made by the court in denying the motions
of Shivar and Tidy for judgment on qualified immunity grounds that
on the facts alleged by Wilkie their conduct would have violated her
then clearly established constitutional rights. We affirm that determi-
nation. Because we lack primary jurisdiction and decline to exercise
pendent appellate jurisdiction over any other portion of the court's
interlocutory order denying summary judgment, we dismiss the
appeals in all other respects, and remand the case for further proceed-
ings.

                    2
I.

Cosette Wilkie went to work for the County in 1989 as a telecom-
municator, a job that entailed staffing the police radio and telephone,
responding to incoming calls, and dispatching equipment and person-
nel to respond to calls. In November of 1991, she was working the
graveyard shift along with fellow employee Henry Smith. Early in the
morning, Wilkie left her post at the console and went into the
employee break room, leaving Smith at the console. In the minutes
that followed, the call center received a number of radio calls which
were not answered because, having taken a number of antihistamine
pills, Smith was asleep at his post.

This much of the factual background of the unanswered-calls inci-
dent at the center of this litigation is undisputed on the summary judg-
ment record. But, just how and why it occurred is hotly disputed on
that record. Wilkie's version, as reflected in her pleading and support-
ing summary judgment materials, is as follows. When she left the
console to go on a scheduled break, Smith was awake. Later, while
talking with two other officers in the break room, she heard the radio
"pin" signal sound, but did not hear Smith answer the call. She then
asked her fellow officers to use their hand radios to call Smith; when
they did, Smith did not respond. Wilkie then tried to respond to
incoming calls by using the radio in the break room, but it was mal-
functioning. She then began answering telephone calls from the break
room and, having figured out that Smith was asleep, reassured callers
that the situation was in control.

The defendants' version, as reflected in their summary judgment
motion and supporting materials, is radically different. Its central
point was that Wilkie set Smith up to embarrass him. Specifically, the
claim was that Smith, who admitted to having taken a dose of antihis-
tamine pills before starting his shift, had asked Wilkie, and she had
agreed, to take care of the incoming calls for a time while he took a
nap, an arrangement asserted to be in keeping with an unwritten pol-
icy among the late-shift telecommunicators. Wilkie then waited for
Smith to fall asleep, and only then went to the break room and sig-
naled officers then outside on duty to call in so that their calls would
go unanswered while Smith slept. According to Wilkie's version,
however, there was no such unwritten policy of covering each other

                    3
during partners' naps, she had never napped during her shift, and
events occurred as she had asserted.

Because it was undisputed that a number of calls did go unan-
swered that night, Tidy as county Emergency Operations Director
investigated. Having interviewed the principals and other officers
both about the napping incident and the alleged napping policy, Tidy
charged Wilkie with having violated the county's Personnel
Ordinance by intentionally abandoning her post, thereby endangering
lives and property, and recommended her discharge. County Manager
Shivar accepted the recommendation and discharged Wilkie. On Wil-
kie's administrative appeal, the Board upheld her discharge.

Smith received only a written reprimand on the basis of the stated
conclusions of Tidy and Shivar that Smith's nap was at most negli-
gent, not intentional as was Wilkie's misconduct. No one else who
was on the scene received any punishment.

Wilkie then brought this action in federal district court, alleging
parallel § 1983 and Title VII equal protection and sex discrimination
claims and state-law breach of contract claims against the Board,
Tidy, and Shivar. All defendants moved for summary judgment on the
merits of all the claims and Tidy and Shivar also sought dismissal of
the § 1983 claim on qualified immunity grounds. The district court
dismissed the Title VII claim against the individual defendants on the
basis that they were not "employers" under the statute and dismissed
the pendent state law claims against all defendants on the merits, but
denied the Board's motion to dismiss the Title VII claim against it,
the motion of all defendants to dismiss the § 1983 claims on the mer-
its, and the motions of Tidy and Shivar to dismiss on qualified immu-
nity grounds the § 1983 claims against them.

The Board, Tidy, and Shivar then jointly noticed appeals from the
district court's order denying their respective motions for summary
judgment.1
_________________________________________________________________

1 Wilkie did not appeal from the dismissals of her Title VII and pendent
state-law claims.

                    4
II.

We first consider the scope of our jurisdiction to review the various
parts of the order from which appeals were noticed. As an interlocu-
tory order denying summary judgment, it is not immediately appeal-
able except to the extent it rejects the individual defendants' claims
of entitlement to pre-trial dismissal of the § 1983 claims on qualified
immunity grounds. Mitchell v. Forsyth, 472 U.S. 511, (1985). And,
with respect to that portion of the order, our appellate jurisdiction is
further confined to reviewing any "purely legal" determination on
which it rests that the facts as alleged by the non-movant and assumed
by the court "support a claim of violation of clearly established law."
Johnson v. Jones, 115 S. Ct. 2151, 2156 (1995) (quoting Mitchell,
472 U.S. at 528 n.9). Insofar as the order also rests on a "fact-related"
determination that genuine issues of material fact respecting the quali-
fied immunity defense preclude summary judgment, that determina-
tion is not reviewable on this interlocutory appeal. Johnson,, 115 S.
Ct. at 2153, 2156-58; Winfield v. Bass, ___ F.3d ___, ___, No. 94-
7346, slip op. at 7, 8 (4th Cir. Jan. 31, 1997) (en banc).

Initially therefore confining our review to the appealable aspects of
the court's qualified immunity ruling, we must dismiss the defen-
dants' attempted appeals from all other portions of the order: that is,
the denial of the Board's motion to dismiss the Title VII claim on the
merits and the motions of all defendants to dismiss the § 1983 claims
on the merits. We have no primary jurisdiction over those attempted
appeals, and we decline defendants' suggestion that we should exer-
cise pendent appellate jurisdiction over them; the issues are not, as
they suggest, inextricably intertwined.

Turning then to the appeals of Tidy and Shivar from denial of their
qualified immunity-based motion, we first observe that the denial was
rested both on an appealable purely legal determination and an unap-
pealable fact-related determination. See Behrens v. Pelletier, 116 S.
Ct. 834, 842 (1996) (pointing out that both determinations may be
embodied in such denial orders). First addressing the purely legal
issue, the district court properly assumed the truth of the non-movant
Wilkie's factual account of the unanswered-call incident as alleged in
her pleading and elaborated in discovery materials. Critically, these
included the facts that her co-employee Smith, having taken sleep-

                     5
inducing medication before going on duty, then went to sleep while
on duty and while Wilkie, unaware of his medicated condition, was
on a scheduled break; that Smith's napping on the job was not by any
pre-arrangement with Wilkie pursuant to an unwritten policy for such
covering conduct, there being no such policy; that Tidy and Shivar,
with knowledge that Smith had deliberately taken sleep-inducing
medication before going on duty and as a result had then gone to
sleep while alone at the console, nevertheless caused Wilkie to be
fired for her conduct in leaving Smith alone at the console but only
caused Smith to be reprimanded for his conduct; and that this dispa-
rate treatment was motivated by the different genders of the two. JA
188-94.2 Summing up, the court concluded that Wilkie had

          gone beyond simply articulating a violation at the general
          level and alleged the infringement of a particularized right
          . . . . Specifically, [she] alleged that, due to her gender, she
          was suspended and then discharged while a similarly situ-
          ated, male co-worker who engaged in misconduct of compa-
          rable seriousness received only a reprimand.

JA 196. And, on this basis, the court held that

          Under settled case law, . . . § 1983 afford[s] public employ-
          ees with [sic] a particularized right to be free from disparate
          discipline based on certain characteristics, including gender.
          . . . Thus, a reasonable official would recognize that such
          action violated clearly established law.

Id.

The court then turned to the further question whether there were
genuine issues of material fact respecting the qualified immunity
defense and concluded that there were: "there are genuine issues of
_________________________________________________________________
2 The court's detailed recitation and assumption of the relevant facts for
summary judgment purposes was mainly done in establishing the factual
predicates for ruling on the defendants' motions to dismiss the Title VII
and § 1983 claims on the merits. But the facts as assumed for that pur-
pose were then clearly the facts expressly assumed by the court in ruling
on the qualified immunity defense. See JA 194-96.

                    6
historical fact respecting [defendants'] conduct, . . . which make sum-
mary judgment based on qualified immunity inappropriate" in
advance of trial. JA 196.

On the ensuing interlocutory appeals of Tidy and Shivar from the
order denying their qualified immunity-based motion, we may, as
indicated, review only the district court's purely legal determination
and not its fact-related genuine issue determination. See Behrens, 116
S. Ct. at 842 (pointing out that where denial order is based on both
determinations, proper procedure is to review legal determination and
decline to review fact-related). And, because that purely legal issue
is not inextricably intertwined with the fact-related issue but may be
addressed independently as an abstract legal question, we decline to
exercise pendent appellate jurisdiction to review the genuine-issue
determination. See Johnson, 165 S. Ct. at 2159.

III.

Reviewing only the district court's purely legal determination as
we have identified it, we affirm that determination.

Our review of denials of summary judgment is de novo, United
States v. Carolina Transformer Co., 978 F.2d 832, 835 (4th Cir.
1992), and in conducting it with respect to this narrow issue, we "take
as given" those facts expressly identified by the district court as the
predicates for its purely legal ruling and we assume the same "set of
facts" in addressing the issue de novo. Johnson, 115 S. Ct. at 2159.
Cf. Winfield, ___ F.3d at #6D6D 6D#, slip op. at 16-18 (holding that where
district court does not expressly identify the predicate facts for its rul-
ing, court of appeals should undertake independent review of record
to identify the proper factual predicate).

Assuming that same set of facts, we agree with the district court
that they would show a violation of clearly established constitutional
right of which reasonable officials in the positions of the individual
defendants would have known. See Anderson v. Creighton, 483 U.S.
635 (1987). As the district court held, the equal protection right of a
public employee not to be subjected because of her (or his) gender to
more unfavorable discipline than that imposed upon a fellow
employee of the opposite gender for misconduct of comparable seri-

                    7
ousness is and was at the time in issue clearly established as one vin-
dicable by legal action under § 1983. See Moore v. City of Charlotte,
754 F.2d 1100, 1107 (4th Cir. 1985) (recognizing parallel right under
Title VII, but reversing for clearly erroneous finding of comparable
seriousness); Keller v. Prince George's County , 827 F.2d 952, 956-63
(4th Cir. 1987) (recognizing congruence of public employee rights
under equal protection clause and Title VII to be free of gender dis-
crimination). And, as the court further, and properly, concluded, the
facts as alleged by Wilkie would, if proven, support a finding of vio-
lation of that right.

The defendants challenge that legal conclusion on two principal
grounds. We take them in order.

The first contention is that the two conceded acts of misconduct by
Wilkie and Smith respectively were not, as a matter of law, of compa-
rable seriousness: Wilkie's involving an intentional act in leaving the
console, Smith's being the merely negligent act of falling asleep
while at the console. But, as the district court pointed out, when, as
was proper, Wilkie's version of the critical facts rather than the defen-
dants' is assumed for purposes of the motion, the acts of misconduct
become essentially indistinguishable in culpability. Smith's conduct
in intentionally taking sleep-inducing medication before going on
duty without advising his graveyard-shift partner or others that to
leave him alone at the console might result in its being unattended is
at least, if not more, culpable than Wilkie's conduct in intentionally
leaving the console to be attended by only one person, but a person
then awake and under no known special danger of falling asleep.

The second contention is related: that whatever the true facts of the
matter, Tidy and Shivar could not as a matter of law be charged with
a knowing violation of Wilkie's clearly established right if they
believed, though erroneously, that her misconduct was significantly
more serious than Smith's. They are right on the legal principle, see
e.g., Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181,
1186 (11th Cir. 1984), but again wrong on its application to the facts
as properly assumed by the district court. For, as that court pointed
out, it is actually undisputed that the two individual defendants knew
that Smith had intentionally taken the medication before going on
late-shift duty and had knowingly failed to advise anyone of the spe-

                     8
cial risk to his ability to attend the console alone that this entailed. JA
192. The district court did not therefore err in concluding that this
knowledge undercut the basis upon which the defendants contended
that as a matter of law their assessment of the relative culpability of
the two was a reasonable one and that they could not therefore be
found knowingly to have violated Wilkie's right to non-
discriminatory treatment.

IV.

We affirm the district court's determination that on the facts
assumed for purposes of the summary judgment motion, the individ-
ual defendants' conduct would have violated Wilkie's clearly estab-
lished right to non-discriminatory treatment of which reasonable
officers in their positions would have known. We decline to review
the court's fact-related determination in denying the qualified
immunity/summary judgment motion that genuine issues of material
fact respecting that defense exist and require resolution by trial. We
dismiss the appeals of all defendants from all other portions of the
district court's order denying summary judgment, and we remand the
case to the district court for further proceedings consistent with this
opinion.

SO ORDERED

                     9
