UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JAMES W. JONES,
Plaintiff-Appellant,

v.
                                                                     No. 95-2850
CUMBERLAND COUNTY; MORRIS
BEDSOLE, in his official capacity and
individually,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Fayetteville.
W. Earl Britt, William L. Osteen, Sr., District Judges.
(CA-94-32-3-2-BR)

Argued: March 5, 1997

Decided: April 8, 1997

Before LUTTIG and WILLIAMS, Circuit Judges, and
GOODWIN, United States District Judge for the
Southern District of West Virginia, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Joseph Michael McGuinness, MCGUINNESS & PAR-
LAGRECO, Elizabethtown, North Carolina, for Appellant. Bobby
Grey Deaver, Fayetteville, North Carolina; Douglas Edward Canders,
CUMBERLAND COUNTY ATTORNEY'S OFFICE, Fayetteville,
North Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Plaintiff James W. Jones appeals the district court's grant of defen-
dant Morris Bedsole's Rule 50 motion for judgment as a matter of law
on Jones' Title VII and Equal Protection claims. We affirm the dis-
trict court ruling because Bedsole offered a legitimate, nondiscrimina-
tory reason for terminating Jones' employment, and Jones failed to
carry his burden of proving that the proffered reason was pretextual
and that the real reason was discriminatory animus.

In September 1990, Jones, then a detective in the Cumberland
County Sheriff's Department, investigated a break-in of Kathrine But-
ler's home. Following the investigation, Jones began a sexual rela-
tionship with Butler, who was both the victim of the break-in and the
prosecution's chief witness in the upcoming trial of the alleged perpe-
trator, Kelvin McNeill. Although the sexual relationship between
Jones and Butler ended prior to McNeill's 1991 trial, the affair proved
problematic for the prosecution. At trial, McNeill's counsel cross-
examined Butler regarding whether she had had a romantic relation-
ship with Jones, and Butler denied such a relationship. When Assis-
tant District Attorney Robert Stiehl privately questioned Jones about
the relationship, Jones replied adamantly, "I am not having an affair
with the prosecution witness." J.A. at 376. After Butler notified Stiehl
that she had, in fact, had an affair with Jones, Stiehl terminated the
trial against McNeill.

Following an internal affairs investigation of Jones' relationship
with Butler, Sheriff Morris Bedsole asked Jones whether he had
engaged in sexual intercourse on county time or in a police vehicle.
Although Jones says that he answered "no," the district court found
that "[e]verybody in the room heard somewhat varying answers to
that, except all witnesses heard at least the plaintiff say `sometimes,'
or `not all of the time.' Others heard it as,`Yes, I did.'" J.A. at

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376-77. Bedsole then informed Jones that his employment would be
terminated.

Jones brought this suit against Cumberland County and against
Bedsole in his official and individual capacities alleging ten claims,
including race discrimination claims under Title VII and the Equal
Protection Clause. The district court dismissed Cumberland County as
a defendant and granted summary judgment to Bedsole on many of
the claims. Following the presentation of all the evidence at trial, the
district court granted Bedsole's Rule 50(b) motion for judgment as a
matter of law as to the remaining claims. The district court concluded
that, although Jones had established a prima facie case of racial dis-
crimination under the framework of McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973), Jones' affair with the prosecution's key
witness constituted a legitimate, nondiscriminatory reason for Bed-
sole's discharge of Jones. The court next concluded that there was no
evidence of pretext or of disparate treatment. Jones appeals the grant
of judgment as a matter of law on his Title VII and equal protection
claims.

Jones' admitted sexual affair with a crime victim whose case he
investigated and who was a key witness at trial was plainly a legiti-
mate, nondiscriminatory reason for Jones' termination. Cumberland
County Sheriff's Department policy prohibits conduct that "[w]ould
bring the department into disrepute, reflects unfavorably upon the
officer as an employee of the Department, damages or affects the rep-
utation of any employee of the Department, or impairs the operation
or efficiency of the Department or any of its personnel." Jones' affair
with Butler brought about each of the enumerated consequences of
this policy. Furthermore, regardless of whether the affair in question
actually adversely affected the prosecution's case, which is in dispute,
the mere fact that the affair had the potential to do so provided a legit-
imate, nondiscriminatory reason for Jones' termination. Jones only
compounded his indiscretion when he answered the Assistant District
Attorney's inquiry regarding his relationship with Butler in a manner
that was misleading at best. Although Jones' alleged admission to
having had sex in a county car may have played some role in Bed-
sole's termination decision, we need not determine whether the record
conclusively establishes that the admission occurred, because the
mere existence of Jones' affair with the lead prosecution witness was

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sufficient grounds for the termination, regardless of where the affair
took place.

There is no record evidence that Bedsole's proffered reason for the
termination was pretextual or that his real motivation was racial ani-
mus. Jones' assertion that blacks receive disproportionately severe
disciplinary treatment from the Cumberland County Sheriff's Depart-
ment is unsubstantiated. The district court allowed Jones to present
evidence regarding the three incidents in which white police officers
engaged in improper sexual activity and received lighter punishments
than Jones. None of these three incidents, however, was even argu-
ably comparable to an officer's sexual relationship with a key crime-
victim witness for the prosecution in a case investigated by that offi-
cer himself. And, in the only arguably comparable incident to Jones',
where a white male deputy had sex in a patrol car with a relative of
a state's witness, the officer was, like Jones, fired. J.A. at 382; Appel-
lee's Br. at 21.

For the reasons stated, the judgment of the district court is
affirmed.

AFFIRMED

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