Fourth Circuit Rules in Lynchburg Firefighter’s Demotion Case

The United States Court of Appeals for the Fourth Circuit has issued a mixed ruling in a case involving the demotion of a Lynchburg, Virginia firefighter who alleged sex discrimination, retaliation, and violations of Virginia’s Whistle Blower Protection Act.

Firefighter Mary Lynn Shumate was placed on administrative leave with pay in October 2021 after concerns were raised about comments to a subordinate about the sexual orientation of a new team member. The facts were explained in the decision as follows:

• Mary Shumate’s superiors were informed in October 2021 that she had instructed a subordinate to “inform her” if the homosexuality of a new team member “bothered [the subordinate] or was offensive or if [the new team member] did anything that made [the subordinate] feel uncomfortable.”
• In response, Deputy Chief Jonathan Wright opened an investigation into whether Shumate had violated the City of Lynchburg’s Code of Conduct and harassment policy, and he retained retired Virginia State Police Trooper Randy Campbell to conduct it. Pending the investigation, Fire Chief Gregory Wormser placed Shumate on administrative leave, with pay.
• State Trooper Campbell interviewed 14 witnesses and completed a report, concluding that “[t]here have been clear violations of Discriminatory Behavior, Unprofessional Behavior, and Acting Beyond a Scope of Authority as delineated by the City of Lynchburg Code of Conduct and the City of Lynchburg Policy Workplace Expectations and Procedures.”
• On receiving this report, Chief Wormser sent Shumate a notice announcing his intent to demote her and providing her the opportunity to show cause why she should not be demoted. But at their subsequent meeting, Shumate presented no information to change Chief Wormser’s mind, and he demoted her on March 2, 2022.
• He also advised her that she could appeal his “decision through the City’s Employee Grievance Procedure which [was] explained in the Employment Policies and Procedures Manual.”
• A month later, Shumate sent an email to another superior at the Fire Department in which she stated,
  • I do not want to move a grievance forward, but I feel it is important to keep a record that is accurate about this. I do not believe that the situation was fairly investigated and  I believe that if I had been a male officer, I never would have been written up or demoted. I feel it is important to share this.
• In response to this email, the City retained an outside attorney to investigate Shumate’s assertion of discrimination on the basis of sex, and the attorney found her claim unfounded.

Shumate later alleged that the discipline was discriminatory, claiming she was treated differently than male employees, and that the demotion was retaliatory after she raised concerns about a hostile work environment. She also filed a state law claim under Virginia’s Fraud and Abuse Whistle Blower Protection Act against the Fire Chief and City Manager.

The U.S. District Court for the Western District of Virginia granted summary judgment for the City on the Title VII sex discrimination and retaliation claims, finding insufficient evidence of discriminatory treatment or pretext. The court also dismissed the whistleblower claim, holding it was barred by sovereign immunity.

The Fourth Circuit affirmed the dismissal of Shumate’s Title VII claims, agreeing that the record did not support her allegations of sex discrimination or retaliation. The court noted that Shumate’s examples of alleged disparate treatment had legitimate explanations unrelated to her gender. It also found no evidence that the City’s stated reasons for demotion were pretextual.

However, the appellate court vacated the dismissal of the state whistleblower claim. The panel concluded that Eleventh Amendment immunity does not apply to municipal officials, and that the district court erred in dismissing the claim on sovereign immunity grounds. The case was remanded for the district court to determine whether to allow the whistleblower claim to proceed in federal court or decline jurisdiction and leave it for the state courts.

Here is a link to the district court’s decision which we covered in May of 2024. The Fourth Circuit decision is attached below.