UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_____________________

No. 95-60369 Summary Calendar _____________________

QUINELL SHUMPERT,

Plaintiff-Appellant,

versus

CITY OF FULTON, MISSISSIPPI; BOYCE MCNEECE,

Defendants-Appellees.

________________________________________________

Appeal from the United States District Court for the Northern District of Mississippi

(1:93CV87-B-D) ________________________________________________

December 15, 1995 Before DAVIS, BARKSDALE, and DeMOSS, Circuit Judges.

PER CURIUM:1

Quinell Shumpert appeals the summary judgment granted the City

of Fulton in his race-based employment discrimination action. We

AFFIRM.

I.

The City hired Shumpert, a black male, as a police officer in

January 1992. He was discharged approximately two months later,

when the City determined that his participation in an extramarital

1 Local Rule 47.5.1 provides: "The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession." Pursuant to that rule, the court has determined that this opinion should not be published. affair violated the Police Department's regulations governing the

conduct of its officers.

When Shumpert applied for the position with the City's police

department, Alderman Boyce McNeece admittedly commented during a

meeting of the Board of Aldermen to consider Shumpert's application

that, "We [the city] don't need that nigger".2 The Board voted to

hire Shumpert.3

Shumpert alleged that two other aldermen also made racially

derogatory remarks regarding him, and that those remarks were

overheard by Fulton volunteer fireman Joey Steele. In his

deposition, Steele denied that the comments he overheard were

racially derogatory, and denied that they concerned Shumpert.

During his tenure with the Fulton police force, Shumpert

embarked on an extramarital relationship with a female who worked

as a clerk in the Itawamba County Tax Assessor's Office. Shumpert

admitted to the relationship when questioned by Chief of Police Ray

Barrett. Barrett, along with Alderman Cornelius Clemons, met with

Shumpert, explained that his conduct violated the Department's

Regulations, and offered him the option of resigning before being

dismissed, which Shumpert refused. Shumpert was suspended without

2 As the district court noted, McNeece's apparent animosity toward Shumpert may have originated over an incident that occurred while Shumpert was employed as a member of the Itawamba Sheriff's Department, in which Shumpert arrested McNeece's son on a charge of driving under the influence and refused to drop the charges despite McNeece's urging. 3 The vote at the meeting was unanimous. However, McNeece later changed his vote as a matter of record to become the lone dissenter.

- 2 - pay until the next meeting of the Board of Aldermen, at which the

Board voted to terminate his employment.

Shumpert disputes that other officers were fired for pursuing

extramarital relationships. However, Fulton police officer James

Brown had been given the opportunity to resign or be fired for his

extramarital involvement in February 1992. Shumpert asserted that

Brown had in fact been discharged by Barrett because he had not

supported Barrett's candidacy for Police Chief. Brown was white.

II.

Pursuant to

, Shumpert asserts that racial

bias was the actual motivation for his discharge. In the

alternative, pursuant to

, he asserts that,

assuming his extramarital relationship formed the basis for his

dismissal, discipline for such a relationship violated his First

Amendment right to free association.

We review a summary judgment de novo. Berry v. Armstrong

Rubber Co.,

(5th Cir. 1993), cert. denied, __

U.S. __,

(1994). While the district court is not

to weigh the evidence or make credibility choices, this, of course,

does not mean that the existence of any fact dispute forecloses

summary judgment. Rather, a genuine dispute must exist regarding

a material fact to preclude summary judgment. Id. at 824.

A.

Shumpert asserts that, even assuming that the extramarital

relationship was the basis for his discharge, such relationships

are encompassed by the privacy and associational rights protected

- 3 - by the First Amendment. He asserts further that the disputed

criminality of the conduct forms a material fact issue.

In Shawgo v. Spradlin,

(5th Cir.), cert. denied,

(1983), this court held that relationships outside of

marriage do not garner absolute constitutional protection.

Specifically, our court found that, when such relationships occur

between government employees, any right to such relations that

might normally exist may be properly tempered by a state's

heightened interest in regulating the conduct of its employees.

Id. at 482-83 (holding that police officers' claim of First

Amendment protection from discipline for their personal, off-duty

association "fails to take into account the fact that the right to

privacy is not unqualified ... and that the state has `more

interest in regulating the activities of its employees than the

activities of the population at large'") (citations omitted).

In Shawgo, the court explained that, to sustain a

constitutional attack on police personnel regulations, a plaintiff

must establish that no rational relationship exists between the

regulation and the safety of people and property that police are

employed to protect. Id. at 483. The regulation at issue is found

in the Police Department's Standard Operating Procedures and

General Rules and Regulations and requires, inter alia, that police

officers maintain their private lives to be "unsullied as an

example to all".4 The City could rationally advance the legitimate

4 Shumpert does not assert that the ethics code is overbroad or void for vagueness. The regulations provide in pertinent part:

- 4 - law enforcement goal of securing the community's confidence in the

integrity of its police officers by having this requirement.

Because the we hold that the conduct for which Shumpert was

dismissed is not protected by the First Amendment in this context,

without regard to whether the conduct was criminally proscribed, no

material fact issue is created by whether Shumpert's extramarital

relationship violated

B.

We analyze § 1981 claims of race-based discrimination in

employment by using the framework fashioned to analyze such claims

under Title VII. See St. Mary's Honor Center v. Hicks,

, 2746-47 n. 1 (1993) (citing Patterson v. McClean Credit

Union,

, (1989)). Under that well-established

framework, the plaintiff is burdened with proving a prima facie

case of discrimination by a preponderance of evidence; from the

establishment of the prima facie case, an inference of

Code of Ethics

I WILL keep my private life unsullied as an example to all; ... Honest in thought and deed in both my personal and official life, I will be exemplary in obeying the laws of the land and the regulations of my department.

Discipline

For the purpose of definition, the following constitute misconduct.... Engaging in any conduct unbecoming of a Police Officer. 5 While the parties dispute the application of

to Shumpert's conduct, we note that Mississippi criminal law does proscribe sex between unmarried persons, further supporting the City's interest in preventing officers from engaging in such conduct.

- 5 - discrimination arises. Texas Dept. of Community Affairs v.

Burdine,

(1981). In order to rebut the inference,

the employer must articulate a legitimate, non-discriminatory

reason for the challenged action.

If the defendant has

presented evidence of a legitimate motivation, then, as our cases

make clear, the plaintiff retains the burden of persuasion

regarding intentional discrimination.

.

For evidence that his discharge was racially biased, Shumpert

offers the earlier quoted comment by Alderman McNeece at the

aldermen's meeting during which Shumpert's employment application

was considered. However, even assuming that the statement

establishes racial bias and that the bias continued until the time

Shumpert was dismissed, we cannot say that McNeece's bias caused

Shumpert's dismissal, because McNeece is only one of five aldermen.

See Bowen v. Watkins,

(5th Cir. 1982) (single

vote does not constitute causation when same conclusion would have

been reached without tainted vote).

Shumpert's assertion that witness Steele had overheard two

other aldermen is equally unhelpful to advance his case. As

discussed earlier, Steele did not testify that he heard such

comments, and Shumpert's own subjective assertions are not

sufficient to create a fact issue regarding discriminatory intent.

Elliot v. Group Medical & Surgery Serv.,

, 567 (5th Cir

1983), cert. denied,

(1984).6

6 Shumpert's testimony that Steele had told him of hearing the conversation, and that Steele had, at the time, described overhearing racially derogatory statements does not create a fact

- 6 - Assuming, arguendo, that Shumpert established a prima facie

case, the City provided a legitimate explanation for the

termination of his employment -- Shumpert's admitted violation of

the department's regulations.

Shumpert seeks to discredit this explanation by asserting that

no other officers were similarly dismissed. Shumpert rejects the

defendants' evidence that a white officer, was, in fact, dismissed

for pursuing an extramarital relationship, and asserts, instead,

that the officer's preference for a Chief of Police candidate other

than Barrett motivated Barrett's decision to fire the officer.

Shumpert offers no direct evidence to support this theory, while,

by contrast, the defendants offered a transcript of the interview

during which the other officer's employment was terminated.

In sum, on this issue, there is no material fact dispute, and

the City is entitled to judgment as a matter of law.

III.

For the foregoing reasons, the judgment is

AFFIRMED.

issue. Evidence must be admissible to create an issue of fact. E.g., Beijing Metals v. Minerals Import/Export, Inc.,

(5th Cir. 1993). The statement would be inadmissible as hearsay, unless introduced to impeach Steele's testimony, in which case the evidence could be used only to impeach, not as substantive evidence of the truth of the matter stated.

- 7 -