City of Greensboro Moves for Summary Judgment in Discrimination Case filed by Former Police Chief, David Wray

Former City Manager, Mitchell Johnson and former Police Chief, David Wray.  Photo credit: News-Record.com.

For those of you who live in the Triad area of North Carolina, you may recall that in 2005, the City of Greensboro police department was fraught with allegations of internal racial discrimination.  The police chief at the time was David Wray.  Allegedly, Mr. Wray used an internal affairs unit to secretly investigate numerous black officers for alleged misconduct.  Furthermore, it was reported that a binder known as the “Black Book” allegedly contained photographs of black police officers.  As reported by NPR, there were rumors that crime suspects were sometimes promised more lenient treatment if they could identify black officers in the “Black Book” for misconduct.    

According to reports by the Greensboro News and Record, the former City Manager, Mitchell Johnson, met with Mr. Wray and the human resources director on January 6, 2006.  During that meeting, Mr. Johnson informed Mr. Wray that he had reviewed two internal reports detailing how Mr. Wray’s administration had investigated its own officers.  According to news articles, Mr. Johnson then informed Mr. Wray that he was being placed on administrative leave.  Mr. Wray subsequently tendered his resignation on January 9, 2006.

Mr. Wray filed a discrimination lawsuit against the City of Greensboro in 2009.  Mr. Wray alleges that the City of Greensboro violated his rights under the Civil Rights Acts of 1866 and 1870, 42 U.S.C. § 1981.  In short, Mr. Wray alleges the city discriminated against him based on his race (white) in an effort to appease a segment of the African American community by publicly stripping him of his authority and forcing him out of office.  A copy of the complaint can be viewed by clicking here.

Section 1981 prohibits all forms of intentional employment discrimination based on race which are considered “disparate treatment”.  The prohibition against disparate treatment applies to hiring, firing, demotion, and failure to promote decisions, as well as to unequal pay and hostile work environment claims.  Proving a Section 1981 claim can be difficult.  A Section 1981 plaintiff alleging discrimination based upon a protected trait must produce sufficient evidence from which one could determine that the protected trait (race) actually motivated the employer’s decision.  See, e.g., Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 286 (4^th Cir. 2004).   

More than four years after the complaint was first filed (and nearly four years after the Court ruled on the City's earlier motion to dismiss), the City has moved for summary judgment.  The City of Greensboro is asking the Court to summarily rule that Mr. Wray cannot prove that he was placed on administrative leave because he is white or that former police chief Tim Bellamy was selected as Mr. Wray’s replacement because he is black.  Instead, the City of Greensboro contends that the evidence demonstrates that Mr. Johnson placed Mr. Wray on administrative leave because of concerns over Mr. Wray’s truthfulness and leadership decisions.   

In defense of its actions against Mr. Wray, the City of Greensboro relies on a decision by the Fourth Circuit Court of Appeals (the Circuit with jurisdiction over North Carolina's federal courts) holding that an employee's dishonesty is a legitimate, non-discriminatory reason for termination.  See Curry v. Alamance Health Services, 1994 WL 242288 (M.D.N.C. Apr. 11, 1994), aff'd 54 F.3d 772 (4th Cir. 1995).    

In support of its motion for summary judgment, the City has included a transcript of the closed door January, 2006 meeting between Mr. Wray and Mr. Johnson.  A copy of the transcript on file with the court can be viewed by clicking here.   The City of Greensboro emphasizes that during the meeting, Mr. Johnson informed Mr. Wray that he was placing him on administrative leave pending further investigation and that Mr. Wray agreed that appointing then Assistant Chief Tim Bellamy as Acting Chief was an appropriate choice.  

This case demonstrates how even corrective personnel actions can sometimes lead to discrimination complaints, regardless of the plaintiff's race.  The case and its long timeline are also good examples of how protracted and expensive employment discrimination cases can become.  A review of the docket shows some 52 filings over the course of 4 years, which likely has generated prodigious legal fees for the City of Greensboro.  

Similarly, the plaintiff's counsel has likely incurred substantial fees over the course of this protracted litigation.  If the plaintiff were to prevail in the case, these fees would present an additional exposure to the City that could very well prove greater than the plaintiff's damages.  This is so because courts routinely award prevailing plaintiff's their attorney's fees as part of the final judgment in employment discrimination actions.  Whether this plaintiff ultimately prevails or not, it seems clear that the City of Greensboro will have paid substantial, costly attorney's fees and expenses over the course of a litigation that has already consumed more than four years of time.  The importance of experienced counsel capable of streamlining litigation and achieving timely and economical results in employment litigation matters cannot be understated.

Mr. Wray will have an opportunity to file a brief in opposition to the City of Greensboro’s motion, but has not yet done so.  We will discuss issues raised by Mr. Wray’s response once his brief is available, so please check back.  In the meantime, please feel free to contact me directly at (336) 333-6375 to discuss this post or other North Carolina employment law matters.  For more information about my Greensboro law firm of Sharpless &Stavola, please visit our website at www.sharpless-stavola.com. 

North Carolina Supreme Court Finds Communications of Professor’s Negative Review Findings to Other University Officials Insufficient to Constitute Publication

As previously discussed, the North Carolina Supreme Court recently ruled, in the case of White v. Trew, that an employment defamation action brought by a public University professor against his department head should have been dismissed at the trial court level.  As we explained last week, the Supreme Court first determined that the plaintiff’s action against his department head, a state employee, failed on sovereign immunity grounds.  The Court also determined that the department head’s communication of the negative review findings to NCSU’s College of Engineering Dean and to the University’s in-house counsel did not constitute a publication of the allegedly defamatory statements in any event.  The lack of publication constituted an additional ground for dismissing the complaint.

The Court’s discussion of this second dismissal basis was relatively short and straightforward.  To be actionable, a defamatory statement must be publicized, or communicated to third-party.  While the defendant in this case did share the allegedly defamatory statements with other persons, several state regulations and statutes allowed him to do so.  The Court cited to various regulations that require the department head to review faculty member performance and “to keep the appropriate dean apprised on the status of the reviews.”  Additionally, the regulation authorized the department head to consult with tenured faculty of the department and to “seek such other advice as the department head deems appropriate.”  Finally, the regulation provided that the written review would become part of the personnel file, which would be open for inspection by “any individual in the chain of administrative authority above the faculty member.”

The Court additionally cited to similarly worded state statutes.  From these authorities, the Court concluded that the dean had a clear right to review the review contents and that it was reasonable for the department head to have consulted in-house counsel given the contentious nature of his relationship with the professor under review.  The Court reasoned that it would run contrary to the referenced statutory and regulatory directives to have required the defendant to keep information about the plaintiff’s allegedly hostile and aggressive workplace behavior to himself.  Consequently, the defendant’s communication of the review findings in conformance with the rights and obligations imposed by the statutes and regulations could not constitute a publication for purposes of a libel suit.

On this particular issue, the Supreme Court based its ruling entirely upon the extensive statutory and regulatory language, which provided extensive support for the Court’s reasoning.  It is noteworthy, however, that the Court did not also characterize the communications as privileged in nature.  Other cases have acknowledged that statements communicated in good faith between persons sharing a common interest or duty and relevant to that common interest or duty enjoy a qualified privilege.  By providing no discussion of privilege protection, the ruling arguably supports a narrow application of the qualified privilege in the context of discussing employee review findings.

The law firm of Sharpless & Stavola, P.A., based in Greensboro, North Carolina, provides counsel and representation in the area of employment defamation.  Please contact us with questions or concerns relating to this or other North Carolina employment law issues.

North Carolina Supreme Court Dismisses University Professor’s Libel Complaint on Sovereign Immunity Grounds

The North Carolina Supreme Court has issued another employment law decision, this one on the subject of employer defamation.  In an opinion filed January 25, 2013, the Court ruled that an employment defamation action brought by a public university professor against his department head should have been dismissed at the trial court level.  The opinion, White v. Trew, is important in two respects.  First, it clarifies pleading requirements in suits against public officials and imposes potential dispositive significance when a complaint is silent as to the capacity in which a public official is sued.  The case additionally addresses the important question of whether an employer’s internal communication of allegedly defamatory remarks can be deemed a publication for defamation purposes.  Our post today reviews the first ruling.

The case, White v. Trew, was filed by a tenured associate professor at North Carolina State University (“NCSU”) after he received a negative performance review.  The review, issued by the plaintiff-professor’s departmental head, stated that the professor did not meet departmental expectations and had engaged in “extremely disruptive behavior.”  The review additionally enumerated specific examples of unprofessional behavior.  The department head shared the review with the College Dean and with NCSU’s in-house counsel.

The professor wrote a rebuttal demanding correction of “falsities” contained in the review.  After no action was taken, the professor initiated a university grievance process.  While that process was still ongoing, the professor filed a complaint against the department head alleging that the review constituted libel, or defamation in written form.  In his answer to the complaint, the defendant raised affirmative defenses of qualified privilege and sovereign immunity and moved to dismiss the complaint on this basis.  The trial court denied the motion to dismiss and was affirmed by a unanimous Court of Appeals.

In reviewing the case, the North Carolina Supreme Court reviewed several principles of sovereign immunity.  The Court explained that the doctrine of sovereign immunity generally provides the State with immunity from suit absent a waiver of immunity.  Case law, the court further noted, has established that a suit against a public official in his official capacity is a suit against the State.  Although the North Carolina Tort Claims Act provides a limited immunity waiver in cases of negligence, the waiver is inapplicable to intentional act claims.  

Because libel is an intentional act claim, the first critical issue was whether the suit constituted an action against a public official in his official capacity.  The plaintiff’s complaint, however, did not specify whether the plaintiff had sued the department head in his individual or official capacity.  Despite this technical omission, the Court of Appeals had concluded that the complaint was drafted in a way that clearly indicated an intent to sue the defendant in his individual capacity.  As such, the Court of Appeals affirmed the trial court’s determination that sovereign immunity did not bar the claim.

The Supreme Court disagreed on the basis of earlier precedent stating that a pleading should indicate in the caption the capacity in which a plaintiff intends to hold a defendant liable.  In its opinion, the Court concluded that this earlier directive “is mandatory rather than precatory.”  In the absence of such clarity, the Court ruled, it must be presumed that the defendant is being sued only in his official capacity. 

After establishing the mandatory nature of the rule, the Court’s resolution of the issue on appeal was brief.  The Court noted that the complaint did not include the words “in his official capacity” or “in his individual capacity,” while the allegations provided no further evidence of capacity.  The Court, applying its newly announced mandatory rule, presumed that the defendant was sued in his official capacity and determined the claim to be barred by sovereign immunity.

The Court’s decision raises pleading requirements for plaintiffs in cases brought against governmental employees.  Going forward, plaintiffs must specify whether a government official is being sued in an individual or official capacity.  Failure to do so will trigger a presumption of official capacity and, in the case of intentional acts, a waiver of the claim under sovereign immunity.  Inasmuch as the majority of employment actions raise allegations of intentional misconduct, the opinion has far-reaching consequences for North Carolina employment law practitioners.

The opinion drew dissent from two Justices, and understandably so.  As the dissenting Justices pointed out, North Carolina case law has never previously required this particular designation by plaintiffs.  To at once announce such a mandatory rule and dismiss the case on that basis seems harsh, particularly since the rule appears to be at odds with the traditional principles of notice pleading.

As explained, the Supreme Court also addressed a second question of whether internal communication of the negative review satisfied the requirement of third-party publication.  We will discuss the Court’s resolution of this additional issue in our next post.  Please feel free to contact me directly by email or at (336) 333-6388 to discuss the case or other North Carolina employment law matters.

N.C. Supreme Court Concludes Injured School Employee Failed to Satisfy Heightened Willfulness Standard Under Exception to Worker’s Compensation Exclusivity Rule

As discussed in our last post, the North Carolina Supreme Court, in its recent Trivette v. Yount opinion, ruled that a Caldwell County public school employee stated a valid negligence cause of action against her school’s principal for an injury suffered on the job.  In so ruling, the Court concluded that the employee’s claim was not barred by the exclusivity provision of North Carolina Workers’ Compensation Act because the relationship between the employee and the school’s principal was one of co-workers rather than one of employee-employer.  Consequently, the claim against the principal qualified for the  Pleasant exclusivity exception, which allows plaintiffs to pursue negligence claims against co-workers for injuries resulting from willful, wanton, and reckless negligence.

After making this initial determination, the Supreme Court considered the defendant’s second, alternative argument.  Specifically, the defendant argued that the plaintiff’s claim, even if allowed to circumvent the exclusivity argument, still failed as a matter of law because the principal’s alleged conduct simply did not rise to the level of willful, wanton, and reckless conduct.  Under this alternative argument, the defendant moved for a summary judgment in its favor.  The trial court denied this motion, finding that disputed issues of fact required a jury to decide the issue. 

After reviewing the facts of the case in a light most favorable to the plaintiff, the Supreme Court agreed with the defendant’s position and determined that the trial court should have granted summary judgment.  The Supreme Court reversed the trial court on this basis.

In its analysis, the Court acknowledged evidence showing that the plaintiff was worried that a mishap with the fire extinguisher could trigger a relapse of her myasthenia gravis.  The Court further found evidence sufficient to suggest that the defendant was aware of this fear.   Nevertheless, the Court referred to precedents holding that even unquestionably negligent behavior rarely meets the high standard of willful, wanton, and reckless negligence.  The Court concluded that there was no evidence indicating that the fire extinguisher presented any danger, whether immediate or latent, while the record was silent as to whether the extinguisher contained any warning labels.  The Court then concluded that even if the defendant knew that an unexpected discharge would be “messy and unpleasant,” the evidence was still insufficient to support an inference that the defendant was willfully, wantonly, or recklessly negligent, or that he was manifestly indifferent to the consequences of an accidental outburst.

Ultimately, the Supreme Court’s ruling in Trivette is something of a mixed bag for parties to negligence actions arising from work place injuries.  On the one hand, the opinion arguably broadens the scope of the Pleasant exception to Worker’s Compensation exclusivity by establishing that a school’s principal and administrative worker constitute co-workers for purposes of the exception.  At the same time, however, the opinion confirms the high level of proof necessary to establish willful, wanton, and reckless negligence under this exception.  Please feel free to contact me directly by email or at (336) 333-6388 to discuss this case law development or other North Carolina employment law issues.