Lands v. City of Raleigh
Filing
46
ORDER granting 32 Motion for Summary Judgment; granting 36 Motion for Leave to File; granting 44 Motion to Seal. Signed by District Judge Terrence W. Boyle on 2/6/2024. (Stouch, L.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:21-CV-491-BO
PATRICK D. LANDS ,
Plaintiff,
V.
CITY OF RALEIGH,
Defendant.
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ORDER
This cause comes before the Court on defendant's motion for summary judgment pursuant
to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff has responded, defendant has replied,
and the motion is ripe for ruling. Also pending and ripe for disposition is defendant' s motion to
seal. For the reasons that follow, the motion for summary judgment is granted and the motion to
seal is granted.
BACKGROUND
Plaintiff is a former employee of the Raleigh, North Carolina Police Department whose
employment was terminated. He filed this action alleging a single claim for retaliation in violation
of the Family Medical Leave Act (FMLA), 29 U.S.C. § 2615(a)(2). The following facts are
undisputed unless otherwise indicated. [DE 40] .
Plaintiff was hired by defendant on December 8, 2008, as a police officer. On September
13, 2017, plaintiff submitted an interoffice memorandum requesting FMLA leave beginning
September 9, 2017, through December 9, 2017. He also submitted an FMLA leave application to
human resources requesting FMLA leave beginning September 8, 2017, and an expected return to
work date of December 8, 2017. As part of his FMLA request, plaintiff elected to use accrued sick,
extended sick, compensatory, and vacation leave. Plaintiff was notified on October 2, 20 I 7,
through a notice of designation that he was approved for FMLA leave from September 8, 2017,
through December 7, 2017. The City of Raleigh routinely grants FMLA leave requests.
Plaintiffs request for FMLA leave was based on his need to provide care to his father, who
had been seriously injured in an accident. In support of his FMLA request, plaintiff provided
defendant with a medical certification form from his father' s physician which reflected the need
for intermittent leave between August 25, 2017, and November 25 , 2017, in order to assist his
father with activities of daily living (ADLs) and transportation to and from appointments.
Plaintiff was on FMLA leave with pay for the period outlined in the October 2017 notice
of designation. On December 5, 2017, plaintiff sought information regarding obtaining an
extension of his leave. On January 3, 2018, plaintiff was approved for leave until February 14,
2018, after demonstrating that his father continued to need assistance with "all normal daily
household needs." [DE 34-12] Ex. D-1 p. 505. Plaintiff submitted additional requests for extended
leave which defendant approved, and remained on paid leave until December 7, 2018, at which
time he returned to work. Upon his return to work, plaintiff was also promoted to the rank of
detective.
On July 3, 2019, Captain C.T. Barnett, with the Raleigh Police Department' s Internal
Affairs Unit, received a phone call from an individual from Emerald Isle, North Carolina who
sought to file a complaint against plaintiff. The caller indicated that plaintiff, who had represented
himself as a project manager with Total Construction"& Company," had engaged in unscrupulous
business practices in soliciting and failing to complete repair and construction work on his home
following Hurricane Florence, which made landfall in North Carolina on September 14, 2018. 1
Total Construction is a construction and remodeling company owned by plaintiffs father. The
1
See https://www.weather.gov/ilm/HurricaneFlorence (last visited Feb. 6, 2024).
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citizen complaint was assigned to Sergeant Bridget Stranahan to investigate. Sergeant Stranahan
was assigned to investigate allegations that plaintiff violated Departmental Operating Instruction
(DOI) 1100-01 Conduct Unbecoming, DOI 1106-07 Secondary Employment, and Standard
Operating Procedure (SOP) 300-9A Human Resources Leave Policy.
Sergeant Stranahan focused her investigation on the time period between September 2018
and December 2018, when plaintiff travelled to Emerald Isle on behalf of Total Construction. As
part of her investigation, Sergeant Stranahan interviewed other Total Construction customers and
business associates. One customer described that following the hurricane plaintiff had identified
himself as a retired, or semi-retired police officer doing contracting work and had promised the
customer that they would be back in their home by Christmas, but at the time of the call in July
2019 the customer was still not back in the house. Ex. D-1 p. 273-309. The customer further
described that plaintiff had told him that Total Construction uses two sets of accounting books one for the insurance company and one for the business - and that Total Construction would be
able to get the customer's deductible back. Id. p. 277; 299. Another Emerald Isle homeowner told
Sergeant Stranahan that plaintiff had "sold" him on the high level of service he would be provided
by Total Construction and that he was promised they would be back in their home by the first of
the year, which did not happen. Id. pp. 408-447. This customer had recently had surgery and
contends that plaintiff assured him that he, plaintiff, "would personally be on island and take care
of it." Id. p. 410. The customer described plaintiff as someone who cuts comers and is willing to
lie, and that the construction company had done poor work all over the island. Id. pp. 412-415.
Plaintiff disputes that he used his employment as a police officer to gain an advantage, lied to any
customers, or engaged in unscrupulous business practices. See, generally, [DE 38] P. Lands Aff.
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Sergeant Stranahan also interviewed plaintiff, after which he was placed on administrative
leave with pay. Due to statements made by plaintiff during his interview, additional violations for
SOP 300-20 Family/Medical Leave and DOI 1104-07 Sick Leave were added to the internal
complaint.
Major T.S. Jordan, after reviewing the file and relevant policies, found that plaintiff had
violated SOP 300-9A, SOP 300-20, DOI 1104-07, DOI 1106-07, and DOI 1100-01 , and
recommended that plaintiffs employment be terminated. Prior to rendering a final decision,
plaintiff was afforded a pre-termination hearing. Major Jordan also considered additional evidence
in the form of a letter from plaintiffs father outlining the assistance that plaintiff had provided him
with both daily activities and his father ' s business, noting that plaintiff did not receive income for
providing that assistance. Plaintiff appealed the decision to terminate his employment to the City
Manager's Office, and the decision was upheld. [DE 34-15] Ex. D-1 p. 1058.
DISCUSSION
A motion for summary judgment may not be granted unless there are no genuine issues of
material fact for trial and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(a). The moving party bears the initial burden of demonstrating the absence of a genuine issue
of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If that burden has been met,
the non-moving party must then come forward and establish the specific material facts in dispute
to survive summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
588 (1986). In determining whether a genuine issue of material fact exists for trial, a trial court
views the evidence and the inferences in the light most favorable to the nonmoving party. Scott v.
Harris, 550 U.S . 372, 378 (2007). However, "[t]he mere existence of a scintilla of evidence" in
support of the nonmoving party' s position is not sufficient to defeat a motion for summary
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judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). "A dispute is genuine if a
reasonable jury could return a verdict for the nonmoving party ... . and [a] fact is material if it
might affect the outcome of the suit under the governing law." Libertarian Party of Virginia v.
Judd, 718 F.3d 308, 313 (4th Cir. 2013) (internal quotations and citations omitted). Speculative or
conclusory allegations will not suffice. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649
(4th Cir. 2002).2
The FMLA entitles eligible employees to a total of twelve weeks of unpaid leave "in order
to care for [a] parent [with] a serious health condition." 29 U.S.C. § 2612(a)(l)(C). "Congress
enacted the FMLA to ' balance the demands of the workplace with the needs of families ' and ' to
entitle employees to take reasonable leave for medical reasons."' Sharif v. United Airlines, Inc.,
841 F.3d 199, 202 (4th Cir. 2016) (quoting 29 U.S.C. § 2601(b)(l), (2)). The FMLA makes it
unlawful for "any employer to discharge or in any manner discriminate against any individual for
opposing any practice made unlawful by this subchapter." 29 U.S.C. § 2615(a)(2). Section
2615(a)(2) has been interpreted to "to protect employees from discrimination or retaliation/or
exercising their substantive rights under the FMLA." Fry v. Rand Constr. Corp., 964 F.3d 239,
245 (4th Cir. 2020) (emphasis in original) (internal quotations and citation omitted). "The FMLA
does not prevent an employer from terminating an employee for poor performance, misconduct,
or insubordinate behavior[,]" Vannoy v. Federal Reserve Bank of Richmond, 827 F.3d 296, 305
(4th Cir. 2016), and courts are not to act as "super-personnel department[s] weighing the prudence
In his opposition to defendant's motion for summary judgment, plaintiff contends that he is
entitled to summary judgment because no reasonable jury could conclude that the reasons provided
by defendant for plaintiff's termination in fact justify termination. The Court notes that plaintiff
has not filed a cross-motion for summary judgment, which would be the typical way to contend
that a genuine issue of material fact does not exist and that a party is entitled to judgment in his
favor. For the reasons discussed below, however, the Court declines plaintiff's invitation to enter
judgment as a matter of law in his favor.
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of employment decisions." DeJarnette v. Corning, Inc., 133 F.3d 293,299 (4th Cir. 1998) (internal
quotation and citation omitted).
A plaintiff may prove retaliation in violation of the FMLA by either producing "direct and
indirect evidence of retaliatory animus or" demonstrating retaliatory intent through circumstantial
evidence, which is evaluated under the familiar McDonnell Douglas burden shifting framework.
Fry, 964 F.3d at 244. "Direct evidence encompasses conduct or statements that both (1) reflect
directly the alleged discriminatory attitude, and (2) bear directly on the contested employment
decision." Laing v. Fed. Express Corp., 703 F.3d 713, 717 (4th Cir. 2013) (internal quotations
omitted, quoting Warch v. Ohio Cas. Ins. Co ., 435 F.3d 510, 520 (4th Cir. 2006)).
The burden shifting framework requires a plaintiff to first establish a prima facie case by
demonstrating that "he engaged in protected activity, that the employer took adverse action against
him, and that the adverse action was causally connected to the plaintiffs protected activity."
Sharif, 841 F.3d at 203 (internal quotations omitted). The burden then shifts to the employer to
provide "some legitimate, nondiscriminatory reason" for the adverse employment action. Id. "If
the employer meets this burden, the presumption of retaliation is dissolved and the plaintiff
resumes the burden of persuading the factfinder that the employer' s proffered explanation is
merely a pretext for discrimination." Id. The plaintiff must then produce "sufficient evidence to
create a genuine dispute of material fact such that a reasonable factfinder could conclude the
adverse employment action was taken for an impermissible reason, i.e., retaliation." Id. At the
pretext stage, the plaintiff must show that retaliation was "a but-for cause" of the adverse action.
Fry, 964 F.3d at 246.
In his opposition to the motion for summary judgment, plaintiff appears to concede that he
proceeds under the burden-shifting framework, and the Court limits its analysis accordingly. It is
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undisputed that plaintiff engaged in protected activity by taking FMLA leave and that he suffered
an adverse employment action when his employment was terminated. See Yashenko v. Harrah 's
NC Casino Co. , LLC, 446 F.3d 541, 551 (4th Cir. 2006). The decision to investigate plaintiff for
department and city policy violations did not occur until approximately eighteen months after
plaintiff's FMLA leave ended. See Waag v. Sotera Def Sols., Inc., 857 F.3d 179, 192 (4th Cir.
2017) (typically close temporal proximity between adverse action and protected activity is
necessary to show causation). However, even assuming that plaintiff has established a causal
connection and thus a prima facie case, he has failed to rebut defendant's proffered legitimate basis
for his termination.
Though much of the dispute in this case concerns whether the FMLA would permit plaintiff
to engage in business activities for his father as a part of his provision of care and psychological
support, the Court need not reach this issue. See 29 C.F.R. § 825.124; Haley v. Town of Wake
Forest, No. 5:16-CV-347-FL, 2018 WL 4689445, at *8 (E.D.N.C. Sept. 28, 2018), aff'd, 775 F.
App'x 89 (4th Cir. 2019) (noting that whether certain activities are protected under the FMLA can
constitute a close question). Plaintiff's employment was terminated after the Raleigh Police
Department conducted an internal affairs investigation into his activities undertaken for his father's
construction company while on FMLA and extended sick leave. The investigation and subsequent
employment decision concluded that plaintiff had violated several of defendant's policies,
including engaging in secondary employment while on extended sick leave and engaging in
conduct unbecoming. Adverse employment actions imposed for violations of workplace policies
do not violate the FMLA. See Adkins v. CSX Transp., Inc., 70 F.4th 785, 793 (4th Cir. 2023)
(violation of rule prohibiting dishonesty is a legitimate and nondiscriminatory reason for adverse
employment action); Phillips v. New Millennium Bldg. Sys., No. 20-2095, 2022 U.S. App. LEXIS
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16875, at *6 (4th Cir. June 17, 2022) (violation of company leave policy a legitimate,
nondiscriminatory reason).
Plaintiff argues that defendant's proffered bases are not legitimate or nondiscriminatory
because they are, at bottom, incorrect. But "when an employer gives a legitimate,
nondiscriminatory reason for discharging the plaintiff, it is not [a court's] province to decide
whether the reason was wise, fair, or even correct, ultimately, so long as it truly was the reason for
the plaintiffs termination." Hawkins v. PepsiCo, Inc., 203 F.3d 274, 279 (4th Cir. 2000) (internal
quotation marks omitted). Plaintiffs arguments are better considered in determining whether he
can show that these proffered legitimate reasons were pretextual, as he cannot demonstrate that
violating any of the above-referenced policies could be grounds for termination. See also Boston
v. Trialcard, Inc., 75 F.4th 861, 867 (8th Cir. 2023) ("We have recognized that ' violations of
company policy are legitimate, nondiscriminatory reasons for termination. "') (citation omitted).
Accordingly, plaintiff must come forward with evidence which would show that the
legitimate, nondiscriminatory bases for his termination were, in fact, pretext for FMLA
discrimination. To do so, he must come forward with more than the evidence required to sustain
his burden to show a prima facie case of discrimination. See Tuan H Nguyen v. Austin Quality
Foods, Inc., 974 F. Supp. 2d 879, 884 (E.D.N.C. 2013).
"Courts utilize the 'honest belief rule' to evaluate employers' responses to claims of
employment discrimination, under which ' [an] employee must present evidence reasonably calling
into question the honesty of his employer's belief.. .. "' Egler v. Am. Airlines, Inc. , No. 5:17-CV73-FL, 2019 WL 826469, at *5 (E.D.N.C. Feb. 21 , 2019) (quoting DeJarnette, 133 F.3d at 299);
see also Capps v. Mondelez Glob. , LLC, 847 F.3d 144, 147 (3d Cir. 2017) ("an employer's honest
belief that its employee was misusing FMLA leave can defeat an FMLA retaliation claim.");
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Mercer v. Arc of Prince Georges Cnty., Inc., 532 F. App'x 392, 396 (4th Cir. 2013) ("employer
does not interfere with the exercise of FMLA rights where it terminates an employee' s
employment based on the employer's honest belief that the employee is not taking FMLA for an
approved purpose"). Here, plaintiff has proffered no non-speculative evidence that defendant did
not honestly believe that plaintiffs conduct while on leave violated its policies. For example,
plaintiff argues that plaintiff "was on long-term FMLA with enough accumulated sick leave to
carry him through, which Defendants did not like and for which they intended to punish him." [DE
37 p. 7]. But he has presented no evidence which would create an issue of fact as to whether
defendant did not like his taking sick leave or whether defendant intended to punish plaintiff for
taking extended sick leave.
Though plaintiff focuses his argument on whether or not he did, in fact, violate any policies,
he has failed to come forward with any evidence which would show that defendant did not believe
that he had violated its policies prior to its termination of his employment. Importantly, plaintiff
admitted during his internal affairs investigation that he "worked" for his father "[b ]asically the
entire time [he] was out on leave," Ex. D-1 p. 143, that he was only providing financial support to
his father from September 2018 to December 2018, id. p. 166, that he had been dishonest with the
police department by not informing them that he was using his leave to work for his father, id. p.
169, that he told a client of his father' s construction company that he was a police officer, or used
to be a police officer, to support the impression that he was honest and not going to "screw [the
client] over," id. p. 190, that he knew he should have asked for permission to work for his father's
business while he was out on leave but did not, id. p. 212, and that his actions after his father ' s
accident were clearly against policy. Id. p. 216.3 Plaintiffs affidavit filed in response to the
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Sgt. Stranahan also clarified during plaintiffs interview that defendant was not concerned with
plaintiffs actions while on FMLA leave. Ex. D-1 p.p. 216-217.
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summary judgment motion indicates that his "statements during the investigation about what [he]
should have done were an attempt to get a good recommendation from the investigation and to get
sympathy for [his] situation." [DE 38] P. Lands Aff.
~
21. However, this self-serving statement
was not a part of the record when plaintiffs investigation was reviewed by the relevant decisionmakers. In other words, plaintiffs own statements during the internal investigation supported the
City' s conclusions that he had violated internal policies, and further provides support to its
contention that it honestly believed plaintiff violated multiple policies which would support his
termination.
To show pretext, plaintiff attempts to rely on comparator evidence. In order "to establish a
valid comparator, the plaintiff must produce evidence that the plaintiff and comparator ' dealt with
the same supervisor, were subject to the same standards and engaged in the same conduct without
such differentiating or mitigating circumstances that would distinguish their conduct or the
employer' s treatment of them for it."' Haynes v. Waste Connections, Inc. , 922 F.3d 219, 223-24
(4th Cir. 2019) (cleaned up, citation omitted). In support of this argument, plaintiff has submitted
his own affidavit which asserts that he knows of other police officers who engaged in worse
behavior and were not terminated. See [DE 38]. He includes a redacted list of officers with a brief
explanation of their wrongful conduct and subsequent discipline. Plaintiff makes no attempt,
however, to show that any alleged comparator dealt with the same supervisor as plaintiff, was
subject to the same standards, or that there are no differentiating or mitigating circumstances which
would distinguish their conduct from plaintiffs. In other words, plaintiff has at this stage failed to
create a genuine issue of fact as to comparator evidence.
Plaintiff has also failed to identify any inconsistencies, contradictions, or post-hoc
rationalization by defendant regarding its proffered bases for his termination which would support
a finding of pretext. Elliott v. Rollins, No. 5:11-CV-693-FL, 2013 U.S. Dist. LEXIS 140926, at
*39 (E.D.N.C. Sep. 13 , 2013). It is further undisputed that the investigation into plaintiffs
activities while on leave were not focused on the time-period covered by the FMLA, but the twelve
months after that during which plaintiff remained on leave. Based on its interview of plaintiff and
additional evidence collected during its investigation, defendant concluded that plaintiff had
engaged in work activities in violation of its secondary employment and sick leave policies as well
as violated its integrity policy by using his position as a police officer to gamer trust while engaged
in other work.
True, defendant also cited violation of its FMLA policy as a ground for termination. But
even if plaintiff is correct, and his "work" for his father during the September - December 2017
period was not in violation of the FMLA, that defendant mistakenly, but honestly believed that his
activities, many of which were not specifically addressed in the notes provided by his father' s
physician, were too far attenuated to constitute providing "care" under the FMLA, does not create
an issue of fact as to whether defendant terminated plaintiffs employment in retaliation for taking
FMLA leave. See Haley , 2018 U.S. Dist. LEXIS 167662, at *28-29 ("plaintiff provides no
evidence that defendants did not honestly believe plaintiff had violated defendants ' sick leave
policy, and because of this violation, terminated him."). Accordingly, even taking all inferences in
the light most favorable to plaintiff, he has failed to rebut defendant' s proffer of legitimate, nondiscriminatory reasons for the termination of his employment. Summary judgment in defendant' s
favor is therefore appropriate.
Defendant has also filed a motion to seal certain confidential documents, specifically
confidential personnel documents of non-party employees of defendant which are shielded from
public disclosure pursuant to N. C. Gen. Stat. § 160A-168. Defendant also seeks to seal false,
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inaccurate, and potentially defamatory information regarding non-parties to this suit. Plaintiff has
failed to respond to the motion, and the time for doing so has expired.
For those reasons outlined in the memorandum in support, [DE 45], the motion is granted.
The Clerk of Court shall maintain under seal [DE 38-7] , [DE 34-26] , and [DE 38-10].
CONCLUSION
Accordingly, for the foregoing reasons, defendant' s motion for summary judgment [DE
32] is GRANTED. Plaintiffs unopposed motion for leave to exceed page limitation [DE 36] is
GRANTED. Defendant' s unopposed motion to seal [DE 44] is GRANTED. The clerk is
DIRECTED to enter judgment in favor of defendant and close this case.
SO ORDERED, this_!!!_ day of February 2024.
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lJ.!8~
;RRENCE W. BOYLE
UNITED STATES DISTRICT JUDGE
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