                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 10-2030


LESIA MCCOLLOUGH,

                Plaintiff - Appellant,

           v.

THE TOWN OF SOUTHERN PINES; JOHN LETTENEY, in his official
capacity as Chief of Police and in his individual capacity,

                Defendants - Appellees,

     and

REAGAN PARSONS, in his official capacity as Town Manager and
in his individual capacity,

                Defendant.


Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.  William L. Osteen,
Jr., District Judge. (1:09-cv-00192-WO-WWD)


Submitted:   June 28, 2011                  Decided:   July 19, 2011


Before SHEDD, DUNCAN, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Stephen A. Boyce, STEPHEN A. BOYCE, ATTORNEY AT LAW, Greensboro,
North Carolina, for Appellant.    M. Robin Davis, JACKSON LEWIS
L.L.P., Cary, North Carolina, for Appellees.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

                 Lesia    McCollough           appeals    the    district      court’s   order

granting summary judgment for Defendants, The Town of Southern

Pines      and    Chief    of   Police          John    Letteney,       and   dismissing     her

employment discrimination action.                        On appeal, McCollough argues

that       she   established         a    prima        facie    case    of    discrimination,

specifically disparate disciplinary treatment based on sex, and

that Chief Letteney is not entitled to qualified immunity on her

42 U.S.C. § 1983 (2006) equal protection claim. 1                                   Finding no

error, we affirm.

                 We review a district court’s grant of summary judgment

de novo, “viewing the facts and the reasonable inferences drawn

therefrom in the light most favorable to the nonmoving party.”

Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008); see also

Anderson         v.   Liberty   Lobby,          Inc.,     477    U.S.    242,    255   (1986).

Summary judgment is proper “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.”                                    Fed. R. Civ. P.

56(a).       If the moving party sufficiently supports its motion for


       1
       McCollough has forfeited appellate review of her remaining
claims by failing to raise them in her opening brief.         See
Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir.
1999). To the extent she seeks to raise a claim of constructive
discharge for the first time on appeal, that claim is not
properly before us. See Muth v. United States, 1 F.3d 246, 250
(4th Cir. 1993).



                                                  2
summary       judgment,      the      nonmoving       party   must       demonstrate        that

there are genuine issues of material fact.                          Emmett, 532 F.3d at

297.

                 Title VII of the Civil Rights Act of 1964, as amended,

prohibits “discriminat[ion] against any individual with respect

to    h[er]        compensation,        terms,       conditions,        or    privileges      of

employment,         because      of    such    individual’s         .    .    .   sex.”        42

U.S.C.A. § 2000e-2(a)(1) (West 2003).                       Where there is no direct

evidence of discrimination, “a plaintiff may proceed under the

McDonnell Douglas 2 ‘pretext’ framework, under which the employee,

after       establishing         a    prima      facie      case    of       discrimination,

demonstrates         that    the      employer’s      proffered      permissible           reason

for taking an adverse employment action is actually a pretext

for discrimination.”                 Diamond v. Colonial Life & Accident Ins.

Co., 416 F.3d 310, 318 (4th Cir. 2005) (internal quotation marks

and brackets omitted).                It is well established that, even under

the     McDonnell        Douglas       burden-shifting         scheme,        the     ultimate

burden      of     persuasion        remains   on     the   plaintiff        at   all      times.

Tex.       Dep’t    of   Cmty.       Affairs   v.     Burdine,      450      U.S.    248,     253

(1981).

                 Our review of the record leads us to conclude that

McCollough          failed    to       establish       a    prima       facie       case    that


       2
           McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).



                                                 3
Defendants discriminated against her on the basis of sex where

none of the male comparators had engaged in similar or more

serious misconduct.                See Cook v. CSX Transp. Corp., 988 F.2d

507,     511       (4th    Cir.        1993)   (discussing          prima    facie     case    of

discriminatory             discipline).               Likewise,        we    conclude     that

McCollough has failed to demonstrate a prima facie case with

respect       to     her    § 1983       claim       against    Chief       Letteney.         See

Holder v. City of Raleigh, 867 F.2d 823, 828 (4th Cir. 1989)

(“Our     analysis          with        respect       to     Title     VII     also     governs

plaintiff’s claims under . . . [§] 1983.”).                             Because McCollough

has not asserted a viable constitutional claim against Chief

Letteney, we have no occasion to consider whether he is entitled

to assert qualified immunity as a defense.                           See Wilson v. Layne,

526    U.S.    603,        609    (1999)       (“A    court    evaluating       a     claim    of

qualified immunity must first determine whether the plaintiff

has alleged the deprivation of an actual constitutional right at

all, and if so, proceed to determine whether that right was

clearly    established            at     the   time    of     the    alleged    violation.”)

(internal quotation marks omitted).

               Accordingly, we affirm the judgment of the district

court.        We dispense with oral argument because the facts and

legal    contentions             are    adequately         presented    in    the     materials




                                                  4
before   the   court   and   argument   would   not   aid   the   decisional

process.



                                                                    AFFIRMED




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