                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 13-2320


KIRBY B. MCZEKE,

                Plaintiff - Appellant,

           v.

HORRY COUNTY,

                Defendant - Appellee.



Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:10-cv-02944-RBH)


Argued:   January 27, 2015                   Decided:   May 1, 2015


Before WILKINSON, KING, and DUNCAN, Circuit Judges.


Affirmed by unpublished opinion.      Judge Duncan      wrote the
majority opinion, in which Judge Wilkinson joined.      Judge King
wrote a dissenting opinion.


ARGUED: Julius Wistar Babb, IV, J. LEWIS CROMER & ASSOCIATES,
L.L.C., Columbia, South Carolina, for Appellant. Mark W. Buyck,
III, WILLCOX, BUYCK & WILLIAMS, P.A., Florence, South Carolina,
for Appellee.    ON BRIEF: J. Lewis Cromer, J. LEWIS CROMER &
ASSOCIATES, L.L.C., Columbia, South Carolina, for Appellant.


Unpublished opinions are not binding precedent in this circuit.
DUNCAN, Circuit Judge:

        Kirby    McZeke,          an    African-American          woman,    is   a     former

employee    of    the     Magistrate’s           office      in    Horry    County,        South

Carolina.       She filed this action pursuant to Title VII of the

Civil    Rights    Act       of    1964       (codified   as      amended   at   42    U.S.C.

§§ 2000e    et    seq.)       (“Title         VII”),   alleging      that    Mark     Harris,

Magistrate Judge, unlawfully terminated her employment on the

basis of her race.            The district court granted summary judgment

in favor of the County, and McZeke appealed.                          Finding no error,

we affirm.



                                                 I.

        McZeke served as an administrative assistant to the Horry

County Magistrate Judge for over twenty years without incident.

Shortly after becoming Magistrate Judge and McZeke’s supervisor

on July 1, 2008, however, Judge Harris initiated disciplinary

proceedings against McZeke for, among other things, “divulg[ing]

information       on     a        General      Sessions      Bench     Warrant        to    the

defendant.”       J.A. 29.             We draw the following facts from McZeke’s

narrative.

        In June 2008--before Judge Harris became the Magistrate--

police officer Matthew Stevenson informed McZeke that he had an

outstanding arrest warrant for Don Herring.                            On learning that

McZeke    expected       Herring         to    visit   the     Magistrate’s      office       on

                                                 2
another matter, Stevenson asked her to do three things: alert

him when Herring arrived; inform Herring of the warrant for his

arrest; and hold Herring until Stevenson got there.                             McZeke did

only one of those things.             Because McZeke was preparing to leave

for the day when Herring appeared at the Magistrate’s office,

she did not inform Stevenson of Herring’s arrival.                          Rather, she

told       Herring   that    there   was    an       outstanding    warrant       for   his

arrest and that Officer Stevenson had asked her to hold Herring

in her office until Stevenson arrived to serve the warrant.                             She

further said that she did not have “holding power” and could not

ask Herring to wait, so she advised him to visit the Solicitor’s

office the next morning.                She never informed Stevenson of her

conversation         with    Herring,    and     Herring     did     not    go     to   the

Solicitor’s office the following morning.                          Nearly two months

later, Officer Stevenson found Herring under a bed in his home

and arrested him there.

       Having learned of the incident with Herring, on September

25,    2008,    Judge       Harris   issued      a    disciplinary     report       citing

McZeke       for,     in     relevant      part,       “[d]ivulging        or     misusing

confidential information,” and suspended her for two days. 1                            J.A.



       1
       Judge Harris also reprimanded McZeke for, in an unrelated
incident, “[t]he use of abusive language towards a fellow
employee or member of the general public while performing
official duties as a County employee.”   J.A. 28.   In response,
(Continued)
                                            3
28.     The report stated that “McZeke divulged information on a

General Sessions Bench Warrant to the defendant” and provided

that if a similar incident were to occur again, the consequence

would be “TERMINATION.”           J.A. 29.       Roughly seven months later,

McZeke again divulged information regarding an unserved arrest

warrant, this time to a defendant’s mother, who was a personal

friend.

      In April 2009, Officer Bernard Grate, after conducting an

investigation        of   a   drug-related      offense    with   a   confidential

informant, obtained an arrest warrant for Anton Graham.                       Officer

Grate discussed the warrant with McZeke because they both knew

Graham’s family personally.           In fact, McZeke later testified in

a deposition that Graham’s mother, Johnnie Mae Graham, “is [her]

best friend.”        J.A. 53.

      McZeke prepared the arrest warrant for Graham on April 20,

2009.      Early the following morning, Officer Grate and others

attempted to serve the warrant on Graham at his mother’s house

but did not find him there.               Mrs. Graham called McZeke later

that morning and asked her “in confiden[ce]” why there was a

warrant for her son.           J.A. 59.       McZeke testified that she “told

her   it   was   a   drug     warrant.”       J.A.   59.    While     Anton   Graham



McZeke acknowledged the incident and stated: “I’m in agreement
w[ith] the abusive language suspension.” J.A. 29.



                                          4
remained      at     large,   the     confidential     informant        who     assisted

Officer Grate in his investigation of Graham telephoned Officer

Grate to say that Graham had contacted him, asking what he knew

about the warrant and accusing him of assisting law enforcement.

       Judge Harris took steps to end McZeke’s employment because

of her action.          He first offered her the option to resign so as

not to foreclose the possibility of future employment with Horry

County.       When McZeke informed Judge Harris that she would not

voluntarily resign, he presented her with a termination letter.

Several      months     later,     Judge    Harris    hired    a    white       woman    to

replace McZeke.

       In November 2010, McZeke filed a complaint against Horry

County       alleging    that    Judge      Harris    fired       her   for     racially

discriminatory          reasons.          Horry   County      moved       for    summary

judgment, arguing that McZeke had failed to establish a prima

facie case of race discrimination because she failed to show

that   she     was    meeting    Judge     Harris’s   legitimate        expectations.

The magistrate judge recommended denying Horry County’s summary

judgment motion on the grounds that “issues of fact exist as to

whether Judge Harris ever communicated to [McZeke] . . . his

expectations”        regarding      her    employment,      and    “the    reason       for

[McZeke’s earlier] suspension was somewhat vague.”                      J.A. 278.

       The     district       court       rejected    the     Magistrate         Judge’s

recommendation and granted summary judgment in favor of Horry

                                             5
County.       The court held that McZeke could not establish a claim

of discriminatory termination based on race because she could

not establish that, at the time of her termination, she was

meeting the legitimate expectations of her employer.                       The court

reasoned that the disciplinary report had put McZeke on notice

that       Judge    Harris      expected    her    not   to    divulge    information

regarding          bench   warrants,       and    despite     that    notice,    McZeke

“plainly       acknowledged        divulging       information       regarding   [the]

bench warrant” for Graham.             McZeke v. Horry Cnty., No. 4:10-cv-

02944-RBH,         2013    WL   5434082,    at    *3   (D.S.C.   Sept.    27,    2013).

McZeke now appeals that decision.



                                            II.

       The sole question before us is whether McZeke was meeting

the legitimate expectations of her employer when she was fired. 2


       2
        Because McZeke did not offer direct evidence of
discrimination, she had to make out a prima facie case of
discrimination under McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973).    See Holland v. Washington Homes, Inc., 487 F.3d
208, 213–14 (4th Cir. 2007). To make out such a case, she had
to show that (1) she belongs to a protected class; (2) she
suffered an adverse employment action; (3) at the time of the
adverse action, she was performing her job duties at a level
that met her employer’s legitimate expectations; and (4) the
position remained open or was filled by a similarly qualified
applicant outside the protected class.      Id. at 214 (citing
McDonnell Douglas Corp., 411 U.S. at 802). The parties did not
below, and do not now dispute that McZeke established the first,
second, and fourth prongs of her prima facie case.    Therefore,
the district court’s review was limited to the third prong--
(Continued)
                                             6
We have no difficulty concluding on these facts that she was

not.        McZeke   does     not    dispute    that     Judge     Harris   had   the

authority to fire her.              She does not dispute that on September

25, 2008, Judge Harris issued a disciplinary report against her

in writing, which warned her not to divulge information about

bench warrants.           And, McZeke does not dispute that seven months

later, she did precisely that: she disclosed information on a

bench      warrant   by    informing    her    best    friend      that   the   arrest

warrant for her friend’s son was for a drug-related offense.

Even viewing these facts in the light most favorable to McZeke,

she was not fulfilling Judge Harris’s expectations when she was

terminated.

       In addition, the legitimacy of Judge Harris’s expectation

that McZeke keep warrant information confidential is confirmed

by   the    facts.        McZeke’s   disclosure       may   have   caused   tangible

harm: after she shared the information about the Graham warrant,

Graham contacted the confidential informant and accused him of

assisting the police.           Even if Judge Harris had not explicitly

warned McZeke against divulging warrant information, he might

well have been justified in terminating her employment because



whether   McZeke   was    meeting   Judge Harris’s   legitimate
expectations when he fired her. Our review is also so limited,
and we consider the question de novo. See Henry v. Purnell, 652
F.3d 524, 531 (4th Cir. 2011) (en banc).



                                          7
she endangered the confidential informant by disclosing that the

arrest warrant was drug-related.

       McZeke’s arguments to the contrary are inapposite.                                 She

contends that “the language of the Disciplinary Report for the

suspension d[id] not provide . . . notice of Judge Harris’s

expectations.”         Appellant’s Br. at 11.                   The report speaks for

itself.      It cited her for “[d]ivulging or misusing confidential

information,”        and     it   explained        that    McZeke      had    done   so    by

“divulg[ing] information on a General Sessions Bench Warrant to

the defendant.”        J.A. 28–29.

       McZeke also argues that her performance would have met the

legitimate expectations of a former supervisor.                         See Appellant’s

Br. at 27.         This argument fails because “[i]t is the perception

of   the     decision      maker    which      is     relevant”        when   determining

whether      a    plaintiff’s       job     performance          met    her    employer’s

legitimate expectations.             Tinsley v. First Union Nat’l Bank, 155

F.3d 435, 444 (4th Cir. 1998), overruled on other grounds by

Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002).

       Our precedent in Warch v. Ohio Cas. Ins. Co., 435 F.3d 510

(4th Cir. 2006), confirms our view that McZeke failed to meet

Judge Harris’s legitimate expectations.                      In that case, we found

that   the       plaintiff    failed      to   show       that   he    was    meeting     his

employer’s        legitimate       expectations,          id.    at    518,    where      the

employer     had     previously      reprimanded          the    plaintiff     “based      on

                                               8
concrete, specific observations,” id. at 517, and the plaintiff

continued to perform contrary to those expectations, id. at 512–

13.      Having     failed   to   heed      Judge    Harris’s     legitimate

expectations      and   written   warning     not   to      divulge    warrant

information,   McZeke    cannot   establish    a    prima    facie     case   of

discriminatory discharge under Title VII.



                                   III.

      For the foregoing reasons, the grant of summary judgment to

Horry County on McZeke’s Title VII claim is

                                                                      AFFIRMED.




                                    9
KING, Circuit Judge, dissenting:

     With all respect for my good friends in the panel majority,

I   am    entirely   unconvinced      that      this    Title      VII   race

discrimination   case   is   as   black   and   white   as   the    majority

suggests.     Viewing the facts in the light most favorable to

McZeke, a reasonable jury could readily conclude that McZeke was

terminated because of her race.           In these circumstances, I am

satisfied to adopt the well-crafted Report and Recommendation of

the federal magistrate judge denying summary judgment to Horry

County.     See McZeke v. Horry Cnty., No. 4:10-cv-02944 (D.S.C.

Aug. 8, 2013), ECF No. 70.        I would therefore vacate and remand

for further proceedings, that is, a jury trial on the merits.

     I respectfully dissent.




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