UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CHARLES R. MCPHAIL,
Plaintiff-Appellant,

v.

TOWN OF LAGRANGE, a Municipal
Corporation,
Defendant-Appellee,

and

JOSEPH T. HARRISON; JERRY W.
WOODALL; WILLIAM N. SMITH;
WALTER ELLIS; BOBBY WOOTEN, in
their official capacities as
                                                             No. 96-1269
Councilmen of the Town of
LaGrange; CHARLES L. GRAY, in his
official capacity as Mayor of the
Town of LaGrange; MICHAEL
TAYLOR, in his official capacity as
Town Manager for the Town of
LaGrange; JOHN L. SULLIVAN, JR., in
his official capacity as Chief of
Police for the Town of LaGrange;
FRED STATEN, SR., in his official
capacity as Mayor Pro-Tem for the
Town of LaGrange,
Defendants.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Greenville.
James C. Fox, District Judge.
(CA-94-178-4-Fl)

Submitted: January 27, 1998

Decided: February 13, 1998
Before RUSSELL, NIEMEYER, and HAMILTON,
Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Gary H. Clemmons, CHESNUTT, CLEMMONS & THOMAS, P.A.,
New Bern, North Carolina, for Appellant. J. Randall Hiner, Anne
Duncan Edwards, WARD & SMITH, P.A., New Bern, North Caro-
lina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

In December 1994, Appellant Charles R. McPhail filed a complaint
against the Town of LaGrange ("LaGrange") under 42 U.S.C.
§§ 2000e-2 & 2000e-3 (1994) and 42 U.S.C.§ 1981 (1994) alleging
racial discrimination in the town's employment practices. McPhail, a
black male and a former police officer for LaGrange, alleged that he
was demoted and subsequently denied promotions to chief of police
and captain on account of his race and in retaliation for having filed
charges with the Equal Employment Opportunity Commission
("EEOC"). The district court dismissed McPhail's § 1981 claim that
he was denied a promotion to captain for failing to state a claim under
Fed. R. Civ. P. 12(b)(6). The court also denied McPhail leave to
amend the complaint. Finally, the court granted LaGrange's motion
for summary judgment. We affirm.

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McPhail was hired as a patrolman for the LaGrange Police Depart-
ment in 1981. He was promoted to sergeant in 1983 and promoted to
assistant chief of police in 1987. In 1992, McPhail and Chief of Police
Pelletier had an argument over scheduling. The town manager,
Michael Taylor, who was responsible for the hiring and firing of
police officers, suspended McPhail for one week. In June 1993, based
partially on the impression that McPhail and Pelletier could not work
together, Taylor and the city council decided to look for a new chief
of police. It was decided that Pelletier would remain in the position
until he became eligible for retirement and that he would leave as
soon as a new chief of police was hired. In addition, it was decided
that all police officers, including McPhail, be demoted to the rank of
patrolman.

On August 2, 1993, McPhail filed his first EEOC charge alleging
discrimination in his demotion to patrolman. Meanwhile, the search
for a new chief of police was commenced by the Town Council.
McPhail applied for the position along with twenty-three others. Five
applicants were selected for closer evaluation, one of whom was
black, and three of those five were interviewed. McPhail was not a
member of either group. John Sullivan, a white male, was chosen to
be the new chief of police. Sullivan was police chief for the Fremont
Police Department. He had the intermediate law enforcement certifi-
cate and the advanced law enforcement certificate from the Training
and Standards Commission. Sullivan was certified by the Criminal
Justice Training and Education Standards Commission and the North
Carolina Department of Community Colleges to provide instruction
in law enforcement. Sullivan also completed the FBI major case
investigation course and taught a variety of law enforcement courses
at the local community college. McPhail had none of this advanced
training or experience. McPhail was trained in firearms, radar, and
accident reconstruction. McPhail was not selected for the position
because of his lack of advanced training and perceptions by the Town
Council regarding his supervisory ability based upon the situation
with Pelletier.

On December 5, 1993, the same day he was sworn in as chief of
police, Sullivan hired J.M. Sasser, a white male, as a police officer.
Sasser served with Sullivan in the Fremont Police Department. He
had a total of six years' law enforcement experience. During his first

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few months as chief of police, Sullivan appointed both McPhail and
Sasser as acting supervisors. On May 4, 1994, McPhail filed his sec-
ond EEOC complaint, alleging that LaGrange discriminated against
him for failing to appoint him as chief of police.

On June 17, 1994, Sullivan promoted Sasser to Captain, a newly-
created position. This position was not held open or advertised for
applications. As Captain, Sasser was second-in-command. Six days
later, McPhail filed his third EEOC complaint, alleging that Sullivan
discriminated and retaliated against him in failing to promote him to
police captain.

According to McPhail, after the filing of the second EEOC charge,
Sullivan began to show displeasure in McPhail's work. On June 20,
1994, Sullivan suspended McPhail for two days for making a state-
ment to a media representative regarding an ongoing investigation, a
violation of department regulations. On July 3, 1994, Sullivan gave
McPhail his annual evaluation, the first one Sullivan had ever given
McPhail. Sullivan told McPhail that he needed improvement. He spe-
cifically directed McPhail to make more of an effort in preliminary
investigations when taking complaint reports and to make building
checks on a consistent basis. McPhail was also informed that he had
not completed investigations in seven incident reports and had not
made any arrests. Sullivan also faulted McPhail for having a below-
standard attitude and not exhibiting leadership skills or assisting other
officers. McPhail stated that he misunderstood what was required of
him and a follow-up evaluation was scheduled one month later. The
second evaluation noted little improvement. On October 3, 1994, Sul-
livan removed McPhail from the acting supervisor position.

During this period, McPhail was seeking medical treatment for
headaches, chest pains, and dizziness. On October 10, 1994, Dr.
Hayes treated McPhail for these symptoms and placed him on medi-
cal leave. Dr. Hayes sent a note to Sullivan stating that McPhail was
undergoing treatment. Sullivan told McPhail that by October 18,
1994, he must submit further information regarding his treatment in
accordance with department policy. McPhail submitted a more
detailed doctor's note which Sullivan found not to be in compliance
with policy. He informed McPhail that he was absent from duty with-
out leave.

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Sullivan completed a third evaluation on November 1, 1994, and
found that there was no improvement in McPhail's performance.
Based on the three below-satisfactory reviews, McPhail was termi-
nated on November 3, 1994. Meanwhile, on November 1, 1994,
McPhail faxed a third doctor's note to Sullivan's office. However,
Sullivan also stated that he did not see the note until November 4,
1994.

We review an order granting a motion to dismiss de novo. The fac-
tual allegations contained in the complaint are accepted as true and
must be construed in the light most favorable to the plaintiff. The
order may be affirmed "only if it appears beyond doubt that the Plain-
tiffs can prove no set of facts in support of their claim that would enti-
tle them to relief." Flood v. New Hanover County, 125 F.3d 249, 251
(4th Cir. 1997).

In the complaint, McPhail alleged the following:

          33. On Friday June 17, 1994, six weeks after McPhail filed
          his second charge of discrimination with the EEOC, Chief
          John Sullivan promoted Officer Sasser to the rank of Cap-
          tain within the LaGrange Police Department. The rank of
          Captain means that Sasser was second in command only to
          Chief Sullivan.

          34. The position of Captain was a newly created position
          within the LaGrange Police Department, which had never
          had the rank of Captain previous to this time. Furthermore,
          upon information and belief, the position of Captain was not
          advertised or otherwise held open for application by any
          other interested parties. Furthermore, upon information and
          belief, Sasser was promoted to Captain after having served
          only 5 months on the LaGrange Police Force, therefore his
          status was one of a probationary employee under Article III,
          Section 3 of the Town Policy. Sasser had never held a super-
          visory position in law enforcement, and had a total of only
          six years, including part-time work, of experience in law
          enforcement at the time he was promoted. Sasser had served
          under Chief Sullivan when Sullivan was Chief of the Fre-
          mont, North Carolina, Police Department. Upon information

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          and belief, Sasser's starting salary was approximately
          $22,000.00 per year as a patrolman, which was greater than
          that earned at that time by Plaintiff, who had been a police
          officer for 13 years.

          35. On June 23, 1994, Plaintiff filed a third charge of dis-
          crimination with the EEOC. McPhail alleged that he was
          denied a promotion to the position of Captain on the
          LaGrange Police Force because of race discrimination on
          the part of the Town of LaGrange Police Department.

(JA at 22).

A claim of disparate treatment in employment is analyzed in the
same manner regardless whether the claim is brought under Title VII
or § 1981. See Mallory v. Booth Refrigeration Supply Co., 882 F.2d
908, 910 (4th Cir. 1989). A plaintiff must establish that he:
(1) belonged to a racial minority; (2) sought and was qualified for
promotion to a position to which promotions were being offered to
persons of his qualifications; (3) despite the qualifications, he was
rejected; and (4) after his rejection, the position remained available
by promotion to others of his qualifications. See Wright v. National
Archives & Records Serv., 609 F.2d 702, 714 (4th Cir. 1979).

Here, McPhail's complaint clearly states the position of captain
was not open to any other officers other than Sasser. There is no indi-
cation anyone else was considered for the position or that McPhail
was rejected for the position. Nor does he allege that he was not
approached about the captain's position because of his race.
McPhail's complaint merely shows that he was treated no differently
than his fellow white officers. Accordingly, we agree with the district
court that McPhail failed to allege a prima facie case under § 1981.

We also find the court did not abuse its discretion in denying
McPhail's motion to amend the complaint to include a Title VII claim
based upon the failure to promote to captain. See Smith v. Angelone,
111 F.3d 1126 (4th Cir.), cert. denied, ___ U.S. ___, 66 U.S.L.W.
3128 (U.S. July 17, 1997) (No. 97-5106). Leave to amend should be
freely given when justice so requires. See Fed. R. Civ. P. 15(a). How-
ever, in this instance, since the court determined that McPhail failed

                    6
to state a claim, it was futile to permit him to amend the complaint
with a similar legal theory. See Foman v. Davis , 371 U.S. 178, 182
(1962) (leave to amend may be denied if amendment is futile).

We also find that the court properly granted summary judgment to
the Defendant on McPhail's remaining claims. LaGrange contended
McPhail was not promoted to chief of police because of his lack of
advanced training and concerns about his supervisory skills. A prima
facie case is successfully rebutted if the white person promoted was
better qualified for the position. See Carter v. Ball, 33 F.3d 450, 458
(4th Cir. 1994). Clearly, Sullivan had more significant advanced train-
ing compared to McPhail. Although having advanced training was not
a requirement for the position, it was preferred. Furthermore, McPhail
cannot show that the proffered reasons were pretextual. Id. McPhail
did not contend Sullivan's advanced training and his prior experience
as a chief of police did not make him an attractive candidate for the
position. Nor did he rebut the perception held by Town Council mem-
bers regarding problems between him and Pelletier.

McPhail also contends that the district court improperly granted
summary judgment on his claim that he was terminated due to his
race and in retaliation for having filed complaints with the EEOC.
McPhail failed to show the proffered reasons for his termination were
pretextual. See Texas Dep't of Community Affairs v. Burdine, 450
U.S. 248, 253 (1981); Carter, 33 F.3d at 460.

Accordingly, we affirm the district court's orders. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before this court and argument will
not aid in the decisional process.

AFFIRMED

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