North Carolina Federal Court Dismisses Wrongful Discharge Claims Under Both ADEA and North Carolina Equal Employment Practices Act

In previous posts, we have discussed the exacting proof that is necessary in order for a claim of age discrimination to prevail.  A United States District Court case from the Western District of North Carolina, Darnell v. Tyson Foods, Inc., demonstrates well the proof challenges an age discrimination plaintiff faces. 

As we explained in a previous post, the Court dismissed this case short of trial in part because it determined that a company’s decision to require a 63 year-old, forty year veteran employee to change to a third shift position, immediately after his return from prostate surgery, was not an adverse employment action.  The Court therefore determined that the plaintiff could not establish the second of four essential elements of a prima facie case of age discrimination.

In its decision, the Court also found that the plaintiff failed to establish the fourth and final element of the required prima facie case of age discrimination.  Recall from our prior posts that this fourth element requires a showing that the employment position from which the plaintiff was terminated remained open or that the plaintiff was replaced by a substantially younger individual.

In this case, the plaintiff was eventually replaced by a 57 year-old man.  In other words, the plaintiff’s replacement was only six years younger.  The Court therefore assessed whether a six year difference in age was sufficient to constitute replacement by a substantially younger individual.  After noting that the Fourth Circuit Court of Appeals (which is the Circuit that oversees North Carolina federal district courts), the Court found that sister circuits have generally found age differences of less than ten years insufficient to satisfy this prima facie case element.  The Court then determined, “[a]bsent any evidence to suggest discrimination, the six year age difference in this case is not sufficient by itself to satisfy the substantially younger requirement.”  Consequently, the plaintiff’s prima facie case failed for this further reason.

In the absence of a prima facie case of age discrimination, the plaintiff’s primary claim under the Age Discrimination in Employment Act (“ADEA”) was dismissed via summary judgment.

Finally, the plaintiff had also asserted an alternative claim for wrongful discharge under North Carolina state law.  The plaintiff based this claim on N.C. Stat.Gen § 143–422.2, a statute recognizing that it is against North Carolina public policy for an employer of 15 or more to discriminate, “on account of race, religion, color, national origin, age, sex or handicap.”  The statute is found in North Carolina’s Equal Employment Practices Act.  In its opinion, the Court made short work in dismissing this alternative claim for the same reasons cited in dismissing the federal age discrimination claim.  In this way, the Court concluded, as have other federal courts to consider the issue, that the North Carolina public policy claim is subject to the same analysis and proof standards as the analogous federal law cause of action.

Darnell demonstrates well the proof difficulties that claims of age discrimination face.  In addition, the case confirms that North Carolina public policy claims are hardly a panacea for claimants.  Although claims pursued under North Carolina’s Equal Employment Practices Act offers certain advantages, such as a longer limitations period and the option of foregoing EEOC administrative review, these claims are ultimately subject to the same substantive analysis and demanding proof requirements as claims pursued under the Age Discrimination in Employment Act.

Plaintiff in Race Discrimination Lawsuit Responds to the City's Motion for Summary Judgment

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.  Mr. Wray ultimately resigned in the face of the racial discrimination allegations.  

Somewhat ironically, Mr. Wray then 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.

Our February 21, 2013 post discussed the City of Greensboro's motion for summary judgment in the case against it by former police chief, David Wray.  David Wray recently submitted his brief in response to the City's motion.  As promised, a discussion of Mr. Wray's response follows.

As expected, Mr. Wray contends that there are genuine issues of material fact for jury determination as to whether he was constructively discharged because of his race and, therefore, summary judgment is not appropriate.  A summary of the factual contentions he makes to support his claim of discrimination follows below.

Mr. Wray stresses that he began employment with the Greensboro Police Department ("GPD") in March of 1981 and was promoted to Chief of Police in July, 2003; the two chiefs prior to Mr. Wray were African-American.  Mitchell Johnson was the Assistant City Manager at the time Mr. Wray was promoted and allegedly led the police chief selection at that time.  Mr. Wray contends that the process of selecting him as police chief involved some discussion of his race.  Mr. Wray also points to Mr. Johnson's evaluation of him in November, 2004 when Mr. Johnson noted that "[a]s the first Caucasian Chief in many years David and his leadership teams actions are observed to the minutest detail."
 

Mr. Wray alleges that shortly thereafter, Ms. Miles and Mr. Johnson presented him with two options: 1) be terminated and lose substantial benefits that Mr. Wray had earned over the course of his career, or 2) resign and retain certain benefits in excess of what he would otherwise have received if he made certain admissions and refrained from defending himself.

Mr. Wray maintains that he resigned without the enhanced benefits.  Mr. Bellamy was officially promoted to the position of Police Chief shortly thereafter.  As previously discussed, in 2005, the City of Greensboro police department, under Mr. Wray's leadership, was fraught with allegations of internal racial discrimination.  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.  Mr. Johnson became the City Manager in July, 2005, during the height of the "Black Book" controversy. 

Mr. Wray maintains that his actions were appropriate.  However, Mr. Wray alleges that Mr. Johnson succumbed to pressure from the African-American community insisting that Mr. Wray be replaced.  Mr. Wray contends that Mr. Johnson held a meeting with an attorney representing several African-American officers, the then City Attorney, Linda Miles, and the then Assistant Police Chief, Tim Bellamy.  Mr. Wray alleges that at that meeting, Ms. Miles and Mr. Johnson actively solicited information adverse to Mr. Wray.  Thereafter, Ms. Miles' office conducted an investigation of Mr. Wray and engaged an outside investigation firm to conduct its own independent investigation.

Mr. Wray contends that Mr. Johnson disregarded both the internal staff report that found no irregularities or discrimination in connection with the issues raised by the African American officers and the report ordered by the city and conducted by nationally recognized law enforcement professional Gil Klienlmecht that did not find irregularities in the department.  

Thereafter, Mr. Wray alleges that Mr. Johnson removed certain personnel duties from him, immediately reporting same in the local media.  Shortly thereafter, Mr. Wray contends that Mr. Johnson suspended him and took the "unprecedented step" of locking him out of his office.  Mr. Johnson then promoted Tim Bellamy, an African-American, to the position of acting Police Chief.
 
Mr. Wray also contends that a number of African-American officers complained that they were discriminated against because of their race during Chief White's and Chief Bellamy's respective tenures.  Mr. Wray contends that despite such complaints against those African-American chiefs, they were not stripped of any personnel duties, nor were they locked out of their offices.  In short, Mr. Wray alleges that he was treated differently than African-American police chiefs under similar circumstances.   

Mr. Wray also alleges that during the process for selection of his successor many publicly made comments explicitly or impliedly recognized race as a significant or qualifying factor to the position.  He also maintains that the City advertised the position in the National Organization of Black Law Enforcement Executives and the National Forum of Black Public Administrators.

Both the City and Mr. Wray's legal briefs correctly note that the ultimate question in every employment discrimination action involving a claim of disparate treatment is whether the plaintiff was the victim of intentional discrimination.  Mr. Wray, however, stresses that unless no rational fact finder could conclude that the employer's action was discriminatory, then his prima facie case together with his presented evidence of pretext is sufficient to defeat the City's motion for summary judgment.  

The City of Greensboro will have an opportunity to reply to Mr. Wray's brief, so it will still be some time before the Court rules on the City's motion for summary judgment.  We will discuss the City's reply once it is filed, so please check back.  

The complex factual and legal issues presented by this case are typical of employment discrimination matters, which is why it is of the utmost importance to engage experienced counsel to prosecute or defend employment litigation matters.  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.