Unverified Pleadings, Non-Comparable Comparators, and Perfunctory Appellate Briefing Cannot Defeat Summary Judgment in Title VII/MFEPA/§§1981–83 Employment Cases

Case: Mitchell Waters v. The Mayor and City Council of Baltimore (No. 25-1440) — Unpublished per curiam

Court: United States Court of Appeals for the Fourth Circuit

Date: June 24, 2026

I. Introduction

This appeal arose from employment discrimination claims brought by Mitchell Waters, a Black firefighter employed by the Baltimore City Fire Department (BCFD), against his employer, the Mayor and City Council of Baltimore (the City). Waters alleged that disciplinary-related actions and responses to workplace incidents reflected (1) race/color discrimination (disparate treatment), (2) a hostile work environment, and (3) retaliation, invoking Title VII, 42 U.S.C. §§ 1981–83, and the Maryland Fair Employment Practices Act (MFEPA).

The district court granted summary judgment to the City on all claims. On appeal, the Fourth Circuit affirmed in full, emphasizing evidentiary and procedural requirements: plaintiffs must support comparator and harassment theories with admissible, nonconclusory evidence, and appellants must preserve and adequately brief arguments to secure appellate review.

II. Summary of the Opinion

Applying de novo review, the Fourth Circuit held that Waters failed to create a genuine dispute of material fact on each claim:

  • Disparate treatment: Waters did not show “different treatment from similarly situated employees outside the protected class” because his comparator examples lacked evidence of comparable misconduct and/or lacked admissible support.
  • Hostile work environment: With the exception of anonymous racist messages, Waters did not show harassment tied to race; and for the anonymous messages, he could not link them to coworkers or show employer liability given BCFD’s investigation.
  • Retaliation: The appellate argument was “perfunctory and undeveloped” and therefore waived.

The panel also treated certain arguments as waived when raised for the first time on appeal, including Waters’s attempt to reframe exhaustion issues as “continuing violations” under National Railroad Passenger Corp. v. Morgan.

III. Analysis

A. Precedents Cited (and How They Drove the Outcome)

1. Summary judgment standards and evidentiary sufficiency

  • Bandy v. City of Salem, 59 F.4th 705 (4th Cir. 2023): Provided the governing standard of de novo review and the requirement to construe facts and reasonable inferences in favor of the nonmovant—yet only where the record contains evidence from which such inferences can reasonably be drawn.
  • Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986): Reinforced that “a scintilla of evidence” is insufficient; a plaintiff must present evidence such that a reasonable jury could return a verdict in his favor.
  • Wai Man Tom v. Hosp. Ventures LLC, 980 F.3d 1027 (4th Cir. 2020): Underscored that conclusory allegations or denials cannot defeat summary judgment.
  • Dash v. Mayweather, 731 F.3d 303 (4th Cir. 2013): The court relied on the principle that speculation, stacked inferences, and minimal evidentiary showings do not create a genuine dispute of material fact—particularly relevant to Waters’s unsupported comparator assertions.
  • Goodman v. Diggs, 986 F.3d 493 (4th Cir. 2021): Critical to the court’s treatment of Waters’s “other Black employees” examples: an unverified complaint is not evidence for Rule 56 purposes (and even a verified complaint must rest on personal knowledge and admissible facts). This helped narrow the record to only those comparator examples tied to Waters and supported (if at all) by proper Rule 56 materials.

2. Harmonized framework across Title VII, §§ 1981–83, and MFEPA

  • Gairola v. Va. Dep't of Gen. Servs., 753 F.2d 1281 (4th Cir. 1985): The court invoked Gairola to justify using the same prima facie framework across Title VII and §§ 1981/1983 claims.
  • Haas v. Lockheed Martin Corp., 914 A.2d 735 (Md. 2007): Supported treating MFEPA as a Title VII analog and looking to federal guidance, allowing the court to analyze all claims through Title VII’s lens.

3. Disparate treatment comparators and “comparable seriousness”

  • Perkins v. Int'l Paper Co., 936 F.3d 196 (4th Cir. 2019): Supplied the four-part disparate treatment prima facie case and the retaliation elements. The court anchored the disparate-treatment analysis to the “similarly situated” requirement from Perkins.
  • Haynes v. Waste Connections, Inc., 922 F.3d 219 (4th Cir. 2019): Functioned as the central comparator precedent: Waters had to show comparable misconduct by non-Black employees and the absence of “differentiating or mitigating circumstances,” plus less severe discipline for the comparator. The court repeatedly found Waters’s examples failed this framework (unclear comparability, unclear discipline, anonymity differences, and evidentiary gaps).
  • Hensley ex rel. North Carolina v. Price, 876 F.3d 573 (4th Cir. 2017): Supported the court’s refusal to craft arguments for Waters where his briefing did not connect facts to governing legal standards.
  • Von Gunten v. Maryland, 243 F.3d 858 (4th Cir. 2001): Used to question whether “attempted late charges” (conceded not to have been imposed) constituted an adverse employment action affecting “terms, conditions, or benefits” of employment.

4. Hostile work environment and employer liability

  • Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761 (4th Cir. 2003): Provided the four elements for hostile work environment claims, including severity/pervasiveness and a basis for imputing liability to the employer.
  • Webster, 38 F.4th at 415: Quoted for the employer-liability standard: an employer is liable if it knew or should have known and failed to take remedial action “reasonably calculated” to end the harassment. The court applied this to conclude BCFD’s investigation into anonymous racist messages undermined imputation of liability.

5. Preservation and waiver on appeal

  • Arakas v. Comm'r, Soc. Sec. Admin., 983 F.3d 83 (4th Cir. 2020): Applied to hold Waters waived a “continuing violations” argument by failing to raise it in the district court.
  • Russel v. Absolute Collection Servs., Inc., 763 F.3d 385 (4th Cir. 2014): The court deemed Waters’s retaliation argument waived as “perfunctory and undeveloped,” reflecting the Fourth Circuit’s insistence on meaningful appellate briefing.

B. Legal Reasoning

1. Disparate treatment: the “similarly situated comparator” requirement did the work

Although Waters identified multiple incidents he characterized as disparate treatment, the court’s reasoning turned on the mechanics of comparator proof under Perkins v. Int'l Paper Co. and Haynes v. Waste Connections, Inc.:

  • Comparator examples must be legally analyzed, not just listed. The opinion faulted Waters’s briefing for failing to explain—using legal authority—why his examples constituted comparable misconduct and less severe discipline.
  • Timing/processing differences are not necessarily “discipline.” Waters argued BCFD took a week to “formally respond” to his workplace-violence complaint while acting immediately on complaints by non-Black employees. The court found he did not show how paperwork timing equated to “less severe discipline” for comparators, as required by Haynes.
  • No adverse action; no case (or at least no developed one). For the “late charges” incident, Waters conceded he never actually received late charges. The court relied on Von Gunten v. Maryland to question whether an unimplemented charge affected employment terms.
  • Rule 56 demands admissible support, not speculation. The court treated Waters’s comparator assertions as inadequately supported—citing only his complaint and interrogatory responses without establishing personal knowledge or corroboration (e.g., time records, testimony). Dash v. Mayweather and Wai Man Tom v. Hosp. Ventures LLC framed the insufficiency.
  • Unverified complaints cannot supply third-party comparator facts. Waters’s examples involving other Black employees were disregarded under Goodman v. Diggs because the complaint was unverified and, even if verified, did not clearly rest on admissible personal knowledge.
  • Anonymity can defeat “similarly situated” comparability. For anonymous racist messages, the court held Waters did not identify a comparator involving anonymous harassment handled differently. In practical terms, the court treated “known accused employee” investigations as materially different from “anonymous actor” investigations.

2. Hostile work environment: nexus to race and imputation to the employer were missing

Applying Bass v. E.I. DuPont de Nemours & Co., the court accepted that anonymous racist texts were race-related but concluded Waters failed the employer-liability element because:

  • Waters could not link the messages to coworkers (a key fact undermining employer responsibility under workplace-harasser doctrines).
  • BCFD investigated in an effort to identify the sender, which the court treated as remedial action “reasonably calculated to end the harassment” under Webster.

For the remainder of alleged conduct, the opinion characterized Waters as relying essentially on the same insufficient disparate-treatment theory to infer race-based harassment, and the record did not support that inference.

3. Retaliation: insufficient appellate development equals waiver

Despite reciting retaliation standards (from Perkins v. Int'l Paper Co.), Waters’s appellate brief offered only a conclusory assertion that the district court failed to draw inferences in his favor. Under Russel v. Absolute Collection Servs., Inc. and Fed. R. App. P. 28(a)(8)(A), the court deemed the claim waived—an outcome driven by appellate procedure rather than merits factfinding.

4. Preservation: switching theories on appeal is not allowed

In a footnote, the opinion illustrates a frequent appellate trap: Waters argued in the district court that the City waived exhaustion defenses; after losing, he invoked “continuing violations” under National Railroad Passenger Corp. v. Morgan for the first time on appeal. Citing Arakas v. Comm'r, Soc. Sec. Admin., the court treated the new theory as waived.

C. Impact

1. Practical impact on discrimination plaintiffs (especially in disciplinary contexts)

  • Comparator evidence must be concrete and admissible. The opinion reinforces that plaintiffs should secure records, testimony, and documentation to show both comparability and differential discipline—particularly where the claim turns on how a disciplinary process was applied.
  • Anonymous harassment is actionable but difficult to impute. Even “disturbing” anonymous racist messages may not support employer liability if the employer investigates and the plaintiff cannot connect the harassment to workplace actors.
  • Interrogatory responses alone may not carry the burden if conclusory. The court signaled that even Rule 56-permitted materials can fail if they do not demonstrate personal knowledge or are speculative in substance.

2. Impact on litigation strategy and appellate practice

  • Briefing quality can be dispositive. The decision highlights two separate waiver doctrines: (a) failure to raise an issue below (Arakas), and (b) perfunctory appellate argument (Russel). Both can end claims without merits review.
  • Unpublished but instructive. While “not binding precedent,” the opinion functions as a clear warning about evidentiary presentation and argument development in the Fourth Circuit.

IV. Complex Concepts Simplified

  • “Summary judgment”: A pretrial ruling where the court decides the case (or claims) because the evidence shows no real dispute of material fact for a jury to decide. Under Fed. R. Civ. P. 56(a), the nonmovant must point to evidence—not just allegations.
  • “Prima facie case” (disparate treatment): An initial showing that, if supported by evidence, permits an inference of discrimination. Here it required proof of “different treatment from similarly situated employees outside the protected class” (Perkins v. Int'l Paper Co.).
  • “Similarly situated comparator”: Another employee who engaged in comparable misconduct under similar circumstances (same general standards, similar seriousness), but received less severe discipline (Haynes v. Waste Connections, Inc.).
  • “Imputing liability” (hostile work environment): Even if harassment occurs, the employer is liable only if legal responsibility can be attributed to it—often because it knew or should have known and failed to take appropriate corrective action (Webster, 38 F.4th at 415).
  • “Waiver” on appeal: Appellate courts generally will not consider (a) arguments not presented to the district court (Arakas v. Comm'r, Soc. Sec. Admin.), or (b) arguments mentioned without meaningful development and support (Russel v. Absolute Collection Servs., Inc.; Fed. R. App. P. 28(a)(8)(A)).

V. Conclusion

Mitchell Waters v. The Mayor and City Council of Baltimore affirms summary judgment where a plaintiff’s discrimination case depends on comparator and harassment theories that are not supported by admissible, non-speculative evidence and are not connected to governing legal standards through developed argument. The opinion also underscores two procedural gatekeepers in the Fourth Circuit: issues not raised below are waived, and appellate claims that are merely asserted—without analysis, authority, and record citations—may be deemed forfeited. Even as an unpublished decision, it consolidates a practical rule of thumb for employment litigation: evidence and briefing discipline are as outcome-determinative as doctrinal elements.