WRAY v. CITY OF GREENSBORO et al
Filing
77
MEMORANDUM OPINION AND ORDER signed by JUDGE THOMAS D. SCHROEDER on 8/19/2013, that the motions for summary judgment by the City (Doc. 47 ) and Johnson (Doc. 44 ) are GRANTED, and the motions to strike by the City (Doc. 65 ) and Johnson (Do c. 63 ) are DENIED AS MOOT. FURTHER that, having dismissed all claims over which the court has original jurisdiction, the court declines to exercise supplemental jurisdiction over Count I, the remaining claim, which is REMANDED to the General Court of Justice, Superior Court Division, Guilford County, North Carolina. (Daniel, J)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DAVID WRAY,
)
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
CITY
OF
GREENSBORO
and
MITCHELL
JOHNSON,
in
his
Official
and
Individual
Capacities,
Defendants.
1:09-cv-00095
MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, District Judge.
Plaintiff David Wray (“Wray”) brings this action against
his
former
(“City”),
employer,
and
the
Mitchell
Johnson
of
Greensboro,
(“Johnson”),
44
&
47)
and
to
of
42
City
Before the court are motions by the City and Johnson
(Docs.
violation
former
§ 1981.
judgment
in
the
Carolina
for
summary
discrimination
North
Manager,
for
race
City
strike
U.S.C.
certain
documents filed in connection with Wray’s response (Docs. 63 &
65).
For the reasons set forth below, Defendants’ motions for
summary judgment will be granted, and the motions to strike will
be denied as moot.
over
which
the
declines
to
remaining
claim
Because this disposition resolves all claims
court
exercise
has
of
the
original
jurisdiction,
supplemental
jurisdiction
complaint,
remanded to the State court of origin.
and
the
action
the
court
over
will
the
be
I.
BACKGROUND
The facts, viewed in the light most favorable to Wray as
the non-moving party, show the following:
Wray, a Caucasian, began a career as a police officer with
the Greensboro Police Department (“GPD”) in March 1981.
2003,
he
was
promoted
African-American
to
Chief
Police,
(Doc.
predecessors.
of
54,
In July
succeeding
Ex.
1
¶¶
two
3-4.)
Johnson, who was then the Assistant City Manager, had led the
search that ultimately resulted in Wray’s selection.
Ex.
2
¶¶
9-11.)
Two
became the City Manager.
years
after
Wray’s
(Doc. 45,
promotion,
Johnson
(Id. ¶ 13.)
At the time of his appointment to Chief of Police, Wray was
charged with cleaning up what the City regarded to be several
areas of concern within the GPD, including discipline standards,
department culture, and integrity, among other things.
54, Ex. 1 ¶ 6.)
(Doc.
To help accomplish this, Wray utilized the
GPD’s Special Intelligence Division (“SID”), which had been in
existence
for
25
years,
to
conduct
certain
internal
investigations of officers thought to be engaged in improper
conduct.
GPD
(Id. ¶ 7 & Ex. B.)
Lieutenant
James
Hinson
One such investigation involved
(“Hinson”),
an
African
American,
whose name and phone number were allegedly found among materials
in the possession of drug dealer.
2
(Id. ¶ 11.)
In
connection
with
the
investigation
of
Hinson,
a
monitoring device (or tracker) was placed on the GPD vehicle
Hinson used while on duty.
(Id. ¶ 12.)
In the summer of 2005,
Hinson became aware of the tracking device and publicly alleged
that
its
use
was
racially
motivated
and
that
he
was
being
targeted for investigation based on his race.
(Id. ¶ 13; Doc.
45,
Hinson
Ex.
2
¶
16.)
Wray
subsequently
placed
on
paid
administrative leave pending the outcome of the investigation.
(Doc. 54, Ex. 1 ¶ 14.)
On June 17, 2005, Wray held a press conference during which
he announced that the GPD was involved in an ongoing criminal
investigation that included the use of internal investigations
conducted by the SID.
(Doc. 45, Ex. 2 ¶ 20 & Ex. B.)
Wray
Hinson
never
mentioned
by
name
in
the
Although
initial
press
conference, the Greensboro News & Record (a local newspaper)
reported that Wray responded to a question during a telephone
interview about Hinson being under investigation by answering
“[y]ou
connect
the
dots.”
(Doc.
54,
Ex.
1-A
(stating
that
Wray’s statement encouraged the newspaper to “read-between-thelines”).)
Thus, based on the press conference and additional
briefings by Wray, Johnson came to believe that Hinson was the
subject of a federal investigation.
(Doc. 45, Ex. 2 ¶ 20.)
The Hinson investigation was not the only GPD investigation
to come under public scrutiny during June 2005.
3
Also during
that time rumors began to surface in the Greensboro community,
and were reported on by the Greensboro News and Record, that the
GPD
had
begun
to
focus
internal
investigations
on
American officers through the use of a “black book.”
Ex. B at 55-56.)
African(Doc. 48,
This “black book” allegedly contained pictures
of African-American GPD officers and was being used to target
these
officers,
investigations.
J.)
based
on
their
race,
for
internal
(Doc. 45, Ex. 2 ¶ 17; see also Doc. 54, Ex. 1-
Wray apparently investigated these claims and reported to
Johnson that no such “black book” existed.
¶ 21.)
(Doc. 54, Ex. 1
Wray did, however, locate a photo array that had been
prepared to investigate an alleged sexual assault by an AfricanAmerican uniformed officer – this photo array contained pictures
of the nineteen officers on duty at the time of the alleged
sexual assault and was shown only to the victim.
(Id.)
After
this photo array was discovered, it was stored in the trunk of
another GPD officer’s police vehicle.
not
consider
“black
book,”
the
he
discovered
did
Johnson’s attention. 1
not
photo
(Id.)
array
immediately
to
bring
Because Wray did
be
its
the
so-called
existence
to
(Id. ¶ 23.)
1
Wray points to the City’s answers to interrogatories in a separate
lawsuit where it admitted that it is “not aware of any documents or
recordings in the possession of the City that indicate any other use
of the photo array . . . other than to purportedly solve or prevent an
alleged violation of the law.” (Doc. 54, Ex. 1-D ¶ 10.) For purposes
of this case, the court need not determine, and therefore does not
4
During the time that the Hinson investigation and “black
book”
became
the
subject
of
public
concern,
the
National
Association for the Advancement of Colored People and the City
council, along with the public, began expressing concerns to
Johnson about possible racial animus within the GPD.
(Doc. 54,
Ex. 2 at 55 (“There were some people who were expressing great
deals
of
Wray.”).)
concern
about
the
police
department,
about
Chief
Further, several high-ranking GPD officers (who were
predominantly
Caucasian)
Johnson during this time.
sought
and
obtained
a
meeting
with
They reported administrative problems
under Wray’s leadership, including improper use of the SID, and
alleged that Wray had both directed GPD officers to improperly
change
discipline
recommendations
and
improperly
discussed
personnel information in violation of North Carolina law.
(Doc.
45, Ex. 2 ¶¶ 26-27 & Ex. 3 at 76-77.)
The North Carolina State Bureau of Investigation (“SBI”)
also contacted and met with Johnson to express concerns about
the way GPD’s SID was handling investigations because, according
to the representatives, Wray, with whom they had raised these
concerns, was not taking them seriously.
(Doc. 45, Ex. 2 ¶ 28.)
Johnson also learned that the Guilford County District Attorney
reach, the question whether the photo array
investigative
technique,
as
claimed
by
administration.
5
was not a legitimate
critics
of
Wray’s
had
requested
that
any
future
investigations
of
Hinson
be
referred to the SBI, although Wray did not notify Johnson of
this fact.
2005,
(Id. ¶ 23.)
the
police
confidence”
Greensboro
in
union
Wray’s
Police
Finally, also during the summer of
for
the
City
leadership,
Officers’
issued
and
the
Association
a
vote
attorney
informed
Wray had lied to him about some unknown issue.
of
“no
for
the
Johnson
that
(Id. ¶¶ 24-25 &
Ex. C (letter from William Hill, attorney for the Greensboro
Police Officers’ Association, stating that Wray “personally lied
and was dishonest to my face”).)
On
July
27,
2005,
Wray
received
a
report
from
G.H.
Kleinknecht, a law enforcement consultant, who had reviewed the
GPD’s
policies
officers
for
well-qualified
and
concluded
administrative
and
that
the
that
and
command
criminal
department
and
supervisory
investigations
performed
at
a
were
high
standard (“Kleinknecht Report”).
(Doc. 57-2.)
recommend certain improvements.
Wray also conducted his own
internal
investigation
of
“recent
The report did
allegations
that
the
Department has not been fair to some of its employees during the
course of internal administrative investigations,” including the
investigation of Hinson.
(Doc. 57-1 at 2.)
On October 24,
2005, Wray sent Johnson a copy of his report, which found no
impropriety.
(Id.)
This led Wray to report to Johnson that
“[t]hese findings confirm my belief that the Greensboro Police
6
Department
is
consistent
and
equitable
with
regard
to
its
internal review practices and that employees are treated fairly
and appropriately with respect to their specific circumstances.”
(Id. at 2.)
Sometime after Wray’s June 2005 press conference, Johnson
received a report that caused him to determine that, contrary to
Wray’s
statements,
Hinson
was
not
the
subject
of
a
federal
investigation but in fact had been cleared of any wrongdoing
after investigations back in 2003 and 2004.
¶ 21; Doc. 54, Ex. 2 at 65.)
(Doc. 45, Ex. 2
Because of this and the concerns
that had been expressed about Wray’s honesty and management of
the
GPD,
and
despite
the
previous
internal
investigative
reports, in November 2005 Johnson asked the City to hire an
outside firm, Risk Management Associates (“RMA”), to investigate
Wray’s leadership and whether Wray had been honest with City
executives and the public about the investigation of Hinson.
(Doc. 45, Ex. 2 ¶ 29 & Ex. E (describing the report’s goal as
determining whether “the police chief provide[ed] accurate and
truthful information to the City Manager . . . and/or the public
at
large
regarding
the
suspension
of
Lieutenant
Hinson,
the
discovery of the tracking device, and other related matters”).)
RMA’s resulting report (“RMA Report”) was delivered to the
City by letter dated December 19, 2005.
40 & Ex. E at 17.)
(Doc. 45, Ex. 2 ¶¶ 39-
The RMA Report concluded that “there is
7
clear and convincing evidence” to support the conclusion that
Wray did not provide truthful and accurate information regarding
Hinson’s suspension, the discovery of the tracking device, and
related matters, that Hinson’s suspension was “unnecessary and
inappropriate,” and that Wray may have violated at least two
North Carolina criminal statutes in connection with a June 2005
union meeting.
(Id. Ex. E at 17.)
This caused Johnson to
believe that Wray may have been misleading regarding the Hinson
investigation, failed to properly oversee the police department,
and may have violated North Carolina law.
(Doc. 45, Ex. 2
¶¶ 39-40.)
On January 6, 2006, Johnson met with Wray and informed him
that he would be placed on administrative leave pending further
investigation into issues raised by the RMA Report.
(Id. ¶ 41.)
During this meeting, both Johnson and Wray agreed that Assistant
Chief
of
Police
Tim
American,
should
serve
administrative leave.
Bellamy
as
(“Bellamy”),
Acting
Chief
who
while
is
Wray
African
was
on
(Doc. 48, Ex. B at 70-72.)
Over the weekend of January 7-8, 2006, Johnson presented
Wray with a choice: he could either resign and obtain certain
post-employment
benefits.
benefits,
or
be
(Doc. 54, Ex. 1 ¶ 32.)
terminated
and
lose
the
On Monday, January 9, 2006,
Wray submitted his resignation (Doc. 48, Ex. A at 11-12 & Ex. F)
8
and Johnson named Bellamy to the position of Interim Chief until
a permanent replacement could be found.
(Doc. 45, Ex. 2 ¶ 47.)
The City subsequently engaged in a search for a new Chief
of Police.
community
Its search involved the use of three panels of
leaders,
including
a
North
Carolina
Supreme
Court
Justice, and City employees to assess the candidates’ expertise
in law enforcement, experience in managing community relations,
and leadership and managerial experience, using a scoring system
that Wray does not challenge here.
Doc. 45, Ex. 2 ¶¶ 50-52)
(Doc. 48, Ex. G at 8-10;
From a group of applicants, these
three panels selected and evaluated four finalists, of different
races, for the position of Chief of Police.
54.)
(Doc. 45, Ex. 2 ¶
Overall, Bellamy was rated the best candidate for the
position by the combined panels and was hired as the Chief of
Police.
(Doc. 48, Ex. B at 145-46 & Ex. A at 53.)
Wray now alleges that Johnson constructively discharged him
in order to placate rising political pressure to put an African
American into the position of Chief of Police because of Wray’s
perceived racism.
As such, Wray alleges he was discriminated
against on the basis of his race, Caucasian, and constructively
discharged in violation of 42 U.S.C. § 1981. 2
2
Both the City and Johnson previously moved to dismiss Wray’s section
1981 claims pursuant to Federal Rule of Civil Procedure 12(b)(6).
(Docs. 10 & 13.) The court dismissed Wray’s claim to the extent they
alleged disparate discipline but denied the motions with regard to
9
II.
ANALYSIS
A.
Motions to Strike
The
City
documents
summary
and
Johnson
submitted
by
judgment.
have
Wray
(See
both
in
moved
response
Docs.
63
&
to
to
strike
the
65.)
various
motions
for
Specifically,
Defendants move to strike the following: (1) any reference to
Johnson’s
2004
responses
to
performance
requests
review
for
of
Wray;
admissions
and
(2)
the
City’s
interrogatories
in
Smith v. City of Greensboro, 08-cvs-5569 (Guilford County); (3)
the
plaintiffs’
Alexander
v.
discovery
City
of
responses
Greensboro,
in
the
related
1:09-cv-293
case
(M.D.N.C.);
of
(4)
internal memoranda addressing concerns of improper treatment of
African-American officers; (5) news articles from the Greensboro
News
&
Record;
(6)
a
Memorandum
of
Understanding
signed
by
Hinson; (7) the affidavit of Walter Jones, an attorney involved
in representing certain African-American GPD officers; (8) the
GPD internal affairs investigation regarding the “black book”;
(9) anything regarding the City’s inability to produce certain
emails
from
the
deposition
of
Walter
Jones;
(10)
an
audio
Wray’s discriminatory discharge claims under section 1981.
Although
the court noted that it was a “very close question” as to whether Wray
stated a claim, it stated that Wray was “entitled to at least explore
whether there is any other evidence to support the plaintiff’s claim.”
(Doc. 26 at 43-44.)
Subsequently, the Magistrate Judge entered a
discovery case management order that limited the scope of discovery to
“the limited issue of the bases for any alleged actions by Defendant
Johnson with respect to Plaintiff’s employment and the hiring of a
replacement for Plaintiff.” (Doc. 31 at 1.)
10
recording of Joe Williams, the attorney for Hinson; (11) certain
statements of opinion from Wray’s affidavit; (12) an affidavit
of Wray in which he attached as exhibits two GPD investigations;
(13) allegations that Johnson ignored the results of internal
investigations;
connection
and
(14)
between
allegations
Wray’s
regarding
resignation
an
and
alleged
Hinson’s
reinstatement.
The court has reviewed this evidence and determined that,
even considering it, summary judgment is still appropriate for
Defendants.
Accordingly, the motion to strike is rendered moot,
and the court will turn to the summary judgment analysis.
See
Redman v. U.S. W. Bus. Res., Inc., 153 F.3d 691, 696 n.7 (8th
Cir. 1998); Harbolt v. Steel of W.V., Inc., 640 F. Supp. 2d 803,
820 (S.D.W. Va. 2009); Tucci v. First Unum Life Ins. Co., 446 F.
Supp. 2d 473, 487 (D.S.C. 2006).
B.
Summary Judgment Motions
Summary judgment is appropriate when there is no genuine
dispute as to any material fact and the moving party is entitled
to judgment as a matter of law.
Corp.
v.
seeking
Catrett,
summary
477
U.S.
judgment
Fed. R. Civ. P. 56(a); Celotex
317,
bears
322
an
(1986).
initial
“[T]he
party
burden
of
demonstrating the absence of a genuine [dispute] of material
fact.”
Bouchat v. Baltimore Ravens Football Club, Inc., 346
F.3d 514, 522 (4th Cir. 2003) (citing Celotex, 477 U.S. at 323).
11
When
assessing
considers
a
motion
“the
interrogatories,
for
summary
pleadings,
and
judgment,
depositions,
admissions
on
file,
the
court
answers
together
to
with
any
affidavits, if any,” Boitnott v. Corning Inc., 669 F.3d 172, 175
(4th Cir. 2012), but it views all facts and draws all reasonable
inferences
therefrom
“in
the
light
most
favorable
to
the
nonmoving party,” Newport News Holdings Corp. v. Virtual City
Vision, Inc., 650 F.3d 423, 434 (4th Cir.), cert. denied, 132 S.
Ct. 575 (2011).
“A genuine question of material fact exists
where, after reviewing the record as a whole, a court finds that
a
reasonable
party.”
jury
could
return
a
verdict
for
the
nonmoving
Dulaney v. Packaging Corp. of Am., 673 F.3d 323, 330
(4th Cir. 2012).
Wray
§ 1981.
alleges
discrimination
in
violation
of
42
U.S.C.
Section 1981 grants all persons within the jurisdiction
of the United States “the same right . . . to make and enforce
contracts . . . as is enjoyed by white citizens.”
This statute
has long been held to prohibit an employer from discriminating
against an employee based on the employee’s race.
Johnson v.
Ry. Express Agency, Inc., 421 U.S. 454, 459-60 (1975).
The
protections of section 1981 apply to white, as well as nonwhite,
citizens.
See McDonald v. Santa Fe Trail Transp. Co., 427 U.S.
273, 286–87 (1976).
12
Where suit is brought against a state actor, as with Wray’s
claims
against
the
City
and
against
Johnson
in
his
official
capacity, “[42 U.S.C.] § 1983 constitutes the exclusive federal
Jett
remedy for violation of the rights guaranteed in § 1981.”
v. Dallas Indep. Sch. Dist., 491 U.S. 701, 733 (1989).
Pursuant
to section 1983, a municipality will be found liable for an act
of
racial
discrimination
discriminatory
act
in
authority
establish
action ordered.”
the
represents
municipality
to
if
that
the
plaintiff
the
official
decision-maker
municipal
shows
policy
that
the
of
the
policy
possessed
with
respect
“final
to
the
Love-Lane v. Martin, 355 F.3d 766, 782 (4th
Cir. 2004); see also Crowley v. Prince George’s Cnty., 890 F.2d
683, 685 (4th Cir. 1989).
In this case, the complaint alleges,
and Defendants do not dispute, that Johnson was the decisionmaker with final policy-making authority for the alleged adverse
employment action taken against Wray.
(Doc. 3 (Complaint) at
¶ 63.)
To prevail on his claims, Wray must establish that, with
regard to section 1981, his employer intentionally discriminated
against
him
on
the
basis
of
his
race,
and,
with
regard
to
section 1983, that the City’s decision-maker with final policy
making-authority
(Johnson)
Wray based on his race.
662,
667
(4th
Cir.
intentionally
took
actions
against
Williams v. Staples, Inc., 372 F.3d
2004);
see
13
Reeves
v.
Sanderson
Plumbing
Products,
Inc.,
530
U.S.
133,
153
(2000)
(noting
that
the
ultimate issue in a case alleging employment discrimination is
“whether
the
plaintiff
discrimination”).
was
the
victim
of
intentional
In assessing whether these standards are met,
the court will look to both direct and circumstantial evidence
of racial discrimination.
Clement v. Satterfield, --- F. Supp.
2d ----, 2013 WL 765374, at *5 (W.D. Va. Feb. 28, 2013).
1.
Wray’s
Direct Evidence
first
avenue
for
establishing
his
claim
produce direct evidence of racial discrimination.
is
to
Id. at *7.
Direct evidence is “evidence which, if believed, would prove the
existence
of
presumptions.”
a
fact
.
.
.
without
any
inference
or
O'Connor v. Consolidated Coin Caterers Corp., 56
F.3d 542 (4th Cir. 1995), rev'd on other grounds by O'Connor v.
Consolidated Coin Caterers Corp., 517 U.S. 308 (1996) (internal
quotations and citation removed).
In the context of this case,
direct evidence comprises “statements that both reflect directly
the alleged discriminatory attitude and that bear directly on
the contested employment decision.”
Warch v. Ohio Cas. Ins.
Co., 435 F.3d 510, 520 (4th Cir. 2006).
Wray points to several items as direct evidence to support
his claim.
However, none suffices.
Wray points first to his 2004 performance evaluation by
Johnson.
The
evaluation,
which
14
was
favorable,
included
a
reference that Wray may be under increased scrutiny from the
public on diversity issues because he was the first Caucasian
Chief of Police in many years.
(Doc. 54, Ex. 3 at 7 (“There
have been a couple of areas that I hope we can continue to work
on . . . [f]oremost are [Wray’s] efforts as a leader and the
efforts of his leadership teams . . . these actions need to be
closely
aligned
diversity.
with
the
organizations
goals
with
regard
to
As the first Caucasian Chief in many years [Wray]
and his leadership teams actions are observed to the minutest
detail.”); see also Doc. 62, Ex. 1 ¶ 8.)
This is not direct
evidence that Johnson or the City had any racial animus toward
Johnson.
Wray cites next to Johnson’s deposition testimony to show
that Johnson was under political pressure to “remove” Wray from
office.
(See Doc. 54 at 14, citing Ex. 2 at 54-57.)
However,
the portions of the deposition cited by Wray fail to support
this proposition.
(See Doc. 54, Ex. 2 at 54-57 (stating only
that Johnson was aware that members of the community and city
council were concerned about possible racial targeting in the
GPD).)
To the extent Wray claims he was terminated based on
public pressure founded on the (improper, he contends) notion he
was perceived to be a racist, such claims are not actionable
employment
College,
discrimination.
889
F.2d
13,
18
Dartmouth
(1st
15
Cir.
Review
1989)
v.
Dartmouth
(rejecting
race
discrimination claim where there was no anti-white racial animus
and the evidence “proves no more than that the College hierarchy
perceived the Students’ acts as racist”), overruled on other
grounds by Educadores Puertorriquenos en Accion v. Hernandez,
367 F.3d 61 (1st Cir. 2004); Fox v. City of Greensboro, 807 F.
Supp.
2d
476,
488
(M.D.N.C.
2011)
(dismissing
race
discrimination claim by Caucasian plaintiffs when the crux of
their
complaint
was
that
“Johnson’s
alleged
actions
were
motivated not by Plaintiff’s race, but by Plaintiff’s alleged
racism”).
Wray also attempts to rely on Johnson’s alleged disregard
of
the
Kleinknecht
Report
and
Wray’s
internal
investigation
report, which Wray characterizes as finding no issues with his
leadership.
of
the
(See, e.g., Doc. 54, Ex. 1 ¶ 24 & Ex. F (conclusion
independent
officers
responsible
investigation
for
the
that
internal
“the
senior
affairs
and
command
criminal
investigation functions are qualified and have the experience
and
training
required
investigations”).)
But
to
manage
even
if
effectively
Johnson
sensitive
disregarded
such
investigative results, which did not even directly address his
concerns about Wray’s honesty, the separate RMA Report still
revealed a legitimate basis for Johnson to have serious concerns
about
Wray’s
leadership.
Additionally,
Johnson’s
alleged
disregard of these investigations is not evidence that, without
16
inference
or
presumption,
establishes
that
Johnson
employment action against Wray based on his race.
took
Holley v.
N.C. Dep’t of Admin., 846 F. Supp. 2d 416, 427 (E.D.N.C. 2012)
(stating
that
“[d]irect
evidence
is
evidence
from
which
no
inference is required” such as “a decisionmaker’s statement that
he did not promote a plaintiff due to her race”).
Wray
next
relies
on
a
statement
by
City
Attorney
Linda
Miles (“Miles”) that she wanted an attorney to “[g]ive me what I
need to get David Wray.”
does
nothing
to
(Doc. 56, Ex. 5 ¶ 6.)
implicate
Johnson,
and,
The statement
pursuant
to
section
1983, the City can only be liable for the acts of a person with
final
policy-making
authority.
See
Greensboro
Prof.
Fire
Fighters Ass’n v. City of Greensboro, 64 F.3d 962, 965 (4th Cir.
1995) (holding that only the Greensboro City Manager or City
Council
have
final
personnel issues).
policymaking
authority
with
respect
to
Accordingly, any statements or intentions of
Miles are irrelevant, and, regardless, there is no evidence her
statement was motivated by racial animus.
Finally, Wray points to the fact that during discovery the
City was unable to provide certain emails from Johnson’s and
Miles’s computers.
Wray argues that the City and/or Johnson
must have destroyed evidence and that Wray should benefit from
an
inference
that
the
“missing”
wrongdoing.
17
emails
provide
evidence
of
During
account
discovery,
for
Miles,
sometime in 2008.
10.)
the
who
City
had
was
left
unable
to
employment
find
with
an
email
the
City
(Doc. 56, Ex. 13 at 54; Doc. 54, Ex. 2 at
The City’s Information Technology Director, Daryl Jones
(“Jones”), testified that if the entire mailbox had been deleted
(which he could not confirm was in fact the case), it could have
been done by a system administrator.
(Doc. 56, Ex. 13 at 54.)
Additionally, the City was also unable to produce some emails
from Johnson’s account.
emails
in
Johnson’s
The items that were unavailable include
inbox
folder
prior
to
October
3,
2005,
emails sent by Johnson before May 31, 2006, and emails deleted
by Johnson prior to January 6, 2007. 3
(Id. at 25.)
Jones
testified that he did not know why these particular emails were
not available (id. at 29), but that the likely reasons were that
they were deleted, moved to another folder that cannot now be
accessed,
or
never
existed
(id.
at
29-30).
Additionally,
Johnson testified that he retained all his emails and produced
any relevant emails in discovery.
(Doc. 68, Ex. A at 25-31).
In
the end, this evidence is not helpful to Wray as direct evidence
because,
Miles’
even
emails
assuming,
were
without
purged,
this
3
deciding,
that
does
establish,
not
Johnson’s
or
without
The items that were available to the City and were provided to Wray
in discovery include: inbox emails from 10/3/2005 through 1/8/2007,
emails in the sent box from 5/31/2006 through 1/8/2007, and deleted
items from 1/6/2007 through 1/8/2007. (Doc. 56, Ex. 13 at 25.)
18
inference, that the City or Johnson took adverse action against
Wray because of his race.
In sum, the court has searched the record and can discern
no
evidence
which
would,
without
inference
or
presumption,
establish that the City and/or Johnson took action against Wray
because
of
his
himself
was
race.
unable
discrimination.
that
Wray
had
Additionally,
to
articulate
during
any
deposition,
direct
evidence
Wray
of
(Doc. 48, Ex. A at 18, 40, 41, 46, 54 (stating
not
found
any
statement
that
would
constitute
direct or firsthand discrimination by Johnson and that there was
no “smoking gun”).)
Indeed, Wray admitted that his theory of
the case was based on the “context of [his] work experience”
(id. at 18) and that, based on his perception of events, he was
“left simply with the common sense that . . . [his constructive
discharge] was framed as a racial issue” (id. at 40) and that
“there is the inference there, the animus, the connection is
there to make that case” (id. at 41).
unable
to
offer
any
direct
Further, Wray was also
evidence
of
discrimination
in
connection with the hiring of a new Chief of Police, and the
court cannot discern any direct evidence on that point, either.
(See also id. at 52-54 (Wray’s statement that he has no evidence
that
given
the
any
hiring
panels
guidance
that
that
selected
their
job
Chief
was
to
Bellamy
name
an
had
been
African-
American Chief of Police, and that the documents in fact showed
19
they were advised only to assess the qualifications and give
their best advice).)
Consequently,
the
court
turns
to
an
analysis
of
the
circumstantial evidence.
2.
In
Circumstantial Evidence
discrimination
cases
under
section
1981
where
direct
evidence is not available, the court will assess the claim using
the
same
analytical
framework
applicable
to
claims
of
discrimination made under Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. § 2000e, et seq.
See Lightner v.
City of Wilmington, N.C., 545 F.3d 260, 263 n.* (4th Cir. 2008).
Thus,
because
discrimination,
Wray
he
cannot
has
the
produce
direct
opportunity
evidence
to
prove
of
racial
his
claim
through the burden-shifting framework established for the Title
VII context in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973).
2000).
Hawkins v. PepsiCo, Inc., 203 F.3d 274, 278 (4th Cir.
Under the McDonnell Douglas framework:
[T]he plaintiff-employee must first prove a prima
facie case of discrimination by a preponderance of the
evidence. If she succeeds, the defendant-employer has
an
opportunity
to
present
a
legitimate,
nondiscriminatory reason for its employment action. If
the employer does so, the presumption of unlawful
discrimination created by the prima facie case “drops
out of the picture” and the burden shifts back to the
employee to show that the given reason was just a
pretext for discrimination.
Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 959 (4th
20
Cir. 1996) (citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502,
511 (1993)).
a.
Wray’s Prima Facie Case
The parties cite different tests for Wray’s prima facie
case.
(1)
Wray contends the elements in the present context are:
membership
in
a
protected
class;
(2)
satisfactory
job
performance; (3) adverse employment action; and (4) treatment
different [from] that [of] similarly situated member[s] not of
his protected class, citing Reeves, 530 U.S. at 142, and White
v. BFI Waste Servs., LLC, 375 F.3d 288, 295 (4th Cir. 2004). 4
(Doc. 56 at 15.)
Notwithstanding this recitation, Wray argues
that
was
is
African-
American, is sufficient to satisfy the fourth element.
(Id. at
17.)
the
fact
he
replaced
by
Bellamy,
who
Johnson adopts the first three elements but contends that
the fourth element is the demonstration of circumstances that
raise a reasonable inference of unlawful discrimination, citing
Adams v. Trustees of the Univ. of N.C.-Wilmington, 640 F.3d 550,
558 (4th Cir. 2011).
(Doc. 45 at 15.)
Finally, the City simply
assumes, without discussion, that Wray could establish a prima
4
Wray characterizes his claim as one of “discriminatory disparate
treatment” and does not cite the test for discriminatory discharge,
the claim he appears to be pursuing. See Hoyle v. Freightliner, LLC,
650 F.3d 321, 336 (4th Cir. 2011) (stating elements of discriminatory
discharge as membership in protected class, engagement in prohibited
conduct comparable to that of misconduct of employees outside the
protected class, and discipline more severe than that of those outside
the protected class).
21
facie case and focuses instead on the remainder of the burdenshifting framework.
(Doc. 48 at 12-14.)
The court need not resolve this apparent inconsistency as
to the proper standard in this case because, even assuming Wray
can meet the applicable standard for a prima facie case, he
cannot overcome the remainder of the burden-shifting approach.
b.
If
a
Defendants’ Legitimate, Non-Discriminatory
Reasons
plaintiff
establishes
a
prima
facie
case
of
discrimination, the employer may articulate a legitimate, nondiscriminatory reason for the alleged adverse employment action.
The burden on a defendant is one of production, not persuasion.
Hicks, 509 U.S. at 509; see also Williams v. Cnty. of Fairfax,
164
F.3d
decision). 5
628,
at
*2
(4th
Cir.
1998)
(unpublished
table
In this case, Defendants have produced evidence that
Johnson believed Wray was misleading in his statements about an
investigation of Hinson and that Wray was mismanaging the GPD.6
5
Unpublished decisions of the Fourth Circuit are not precedential but
are cited for their persuasive authority.
See Collins v. Pond Creek
Mining Co., 468 F.3d 213, 219 (4th Cir. 2006) (recognizing that “we
ordinarily do not accord precedential value to our unpublished
decisions” and that such decisions “are entitled only to the weight
they generate by the persuasiveness of their reasoning” (citation
omitted)).
6
Johnson’s belief was based in part on the RMA Report, the executive
summary of which concluded in part:
The report [] details findings and conclusions that support
the position that Chief David Wray provided inaccurate and
22
See McLean v. Broadfoot, No. 4:10–CV–00019, 2011 WL 1833302, at
*12-13 (W.D. Va. May 13, 2011) (employer had legitimate, nondiscriminatory
reasons
when
plaintiff
submitted
a
misleading
report); see also Saucedo-Falls v. Kunkle, 299 F. App’x 315, 324
(5th Cir. 2008) (per curiam) (finding that police chief stated
non-discriminatory
reason
for
plaintiff’s
termination
when
he
“lost confidence in her ability to lead the Narcotics Division
and
because
he
wanted
to
restore
public
confidence
after
a
scandal in that division”); cf. Jones v. Dole Food Co., Inc.,
827
F.
Supp.
2d
532,
547
(W.D.N.C.
2011)
(finding
that
an
employee who gives misleading information to his employer is not
meeting
his
employer’s
legitimate
employment
expectations);
Anglin v. Progress Energy Serv. Co., 645 F. Supp. 2d 519, 525-26
misleading information to the City Manager, Deputy City
Manager, City Attorney, City Council members and/or the
public at large regarding the suspension of Lieutenant
Hinson, the discovery of the tracking device, and other
related matters.
RMA believes that a reasonable person
would conclude that Chief Wray knew the detail of the
history of the on-going criminal and administrative
investigations into Lieutenant Hinson conducted under the
direction of his Deputy Chief by the special unit of the
Intelligence Section of the GPD.
There is clear and
convincing evidence to support the conclusion that Chief
Wray did not provide truthful and accurate information
regarding this matter and that the resulting suspension of
Lieutenant Hinson was unnecessary and inappropriate.
RMA
also believes that the facts and circumstances support the
conclusion that Police Chief David Wray may have violated
at least two North Carolina criminal statutes during his
June 16, 2005, meeting with union representatives.
(Doc. 46, Ex. E). To the extent other non-discriminatory reasons have
been raised by Defendants, they need not be reached because the ones
noted here are sufficient.
23
(E.D.N.C.
2009)
investigation
(noting
that
that
evidence
revealed
that
from
an
plaintiff
independent
had
behaved
inappropriately prevented plaintiff from establishing his prima
facie case and also provided a legitimate, non-discriminatory
reason
for
termination).
These
are
sufficient
to
satisfy
Defendants’ burden of production.
c.
Pretext
Because Defendants have met their burden of production, the
court turns to Wray’s burden to establish pretext.
To survive a
summary judgment motion a plaintiff must develop some evidence
on
which
a
juror
discrimination
Mackey
v.
could
motivated
Shalala,
360
reasonably
the
F.3d
base
challenged
463,
469
a
finding
employment
(4th
Cir.
that
action.
2004).
To
establish a genuine factual dispute, a plaintiff must show both
that the reason offered by the defendant was false and that
discrimination
was
the
real
reason.
Jiminez
v.
Mary
Wash.
Coll., 57 F.3d 369, 378 (4th Cir. 1995).
In this case, Wray attempts to establish pretext through
the following facts (which overlap with Wray’s proffered direct
evidence of discrimination): that Johnson ignored the results of
two
investigations
participated
in
a
clearing
Wray
“clandestine”
of
wrongdoing;
meeting
seeking
that
to
Johnson
discredit
Wray; that City Attorney Miles made a statement about “get[ing]
24
David Wray;” 7 that a Memorandum of Understanding with Hinson was
signed the day following Wray’s resignation; and that the City
did not produce some emails from the email accounts of Johnson
and Miles in discovery.
(Doc. 54 at 18-20; Doc. 56 at 18-19.)
Each will be addressed in turn.
Wray’s first contention is that Johnson ignored the results
of
two
investigations
that
cleared
Wray
of
wrongdoing.
According to Wray, an internal staff investigation (led by him)
and the Kleinknecht Report determined there was no evidence of
management issues in the GPD.
Wray
contends
conclusions
that
of
investigation
these
is
(See Doc. 56, Ex. 1-E & Ex. 1-F.)
Johnson’s
reports
evidence
of
decision
and
his
pretext.
to
disregard
initiation
of
The
court
the
the
RMA
disagrees.
Defendants have provided evidence that Johnson, even before the
RMA Report, had already determined that Wray had been dishonest
or misleading in his depiction of the investigation of Hinson.
(Doc.
45,
Ex.
2
¶ 21.)
The
evidence
also
establishes
that
Johnson initiated the RMA Report, despite the existence of other
investigations, at least in part because of his concerns about
Wray’s representations about, and GPD’s possible involvement in,
racial targeting of black GPD officers.
7
(Id. ¶ 29.)
Moreover,
This allegation fails in the circumstantial evidence context for the
same reasons that it fails in the direct evidence context. See supra
Part II.B.1.
25
as noted, any effort to portray this as evidence that Wray was
terminated
for
being
perceived
employment discrimination claim.
to
be
a
racist
fails
as
an
See Dartmouth Review, 889 F.2d
at 18; Fox, 807 F. Supp. 2d at 488.
Pretext does not exist, moreover, simply because a prior
investigation reported no wrongdoing.
In McLean, an initial
investigation cleared the plaintiff, a police officer, of any
wrongdoing in connection with a shooting.
*12.
However,
separate
the
plaintiff’s
investigation
2011 WL 1833302, at
supervisor
(following
public
later
undertook
complaints)
a
and
determined that the plaintiff had been misleading in statements
he made about the incident.
Id.
The court found that there was
no evidence of pretext in the supervisor’s decision to credit
the results of the later investigation.
initial
investigations
may
have
Id.
cleared
Likewise, although
Wray
of
wrongdoing,
there is no evidence of pretext when Johnson, in response to
public complaints, directed an additional investigation led by a
third party that ultimately was unfavorable to Wray. 8
8
Wray attempts to undermine the RMA Report by claiming that it was
the product of inappropriate investigative techniques, including
“unscheduled ambush style polygraphs and prolonged, haranguing and
threatening interrogations.” (Doc. 54, Ex. 1 ¶ 13.) These claims are
unavailing, however, as Wray has no factual support, besides his own
opinion,
for
his
statements.
Further,
even
if
RMA
used
“unprecedented” techniques to gather information, there is no evidence
that the use of such techniques was motivated by racial animus against
Wray.
26
Wray next points to Chief Bellamy’s testimony regarding a
“clandestine”
Chief
meeting
Bellamy
involving
as
testified
evidence
himself,
a
that
member
of
there
of
pretext.
was
the
a
Specifically,
“private
City
Attorney’s
meeting”
staff,
Johnson, and an attorney from the Police Officers’ Association.
(Doc.
56,
Ex.
conversation
employees
being
(Id.)
6
at
and
treated,
at
the
18.)
meeting
subordinates
about
According
the
to
“centered
around
how
police
department
within
morale
the
of
the
Chief
police
Bellamy,
people
the
and
were
department.”
Wray also points out that Chief Bellamy conceded in the
meeting that Wray never did anything detrimental to Bellamy’s
career or discriminated against him.
(Id.)
However, this is
not evidence that the meeting was meant to seek information to
discredit Wray based on his race; instead, the record reflects
that the information being discussed at the meeting involved the
overall morale of the police department and officer concerns.
The fact that someone, now unknown, inquired during the meeting
whether Wray was discriminating against Bellamy (and was told
that Wray was not) falls short of showing that the reasons given
for Wray’s termination were false and pretext for discrimination
based on race.
Wray next points to a Memorandum of Understanding (“MOU”)
with Hinson that was agreed to before Johnson placed Wray on
administrative
leave
but
signed
27
January
10,
2006,
the
day
following Wray’s resignation.
The MOU allowed Hinson, who Wray
had placed on leave, to return to duty the following day.
54, Ex. 1-K, Ex. 2 at 65, 68.)
(Doc.
In the MOU, the City agreed that
Hinson’s personnel records would be purged of the investigations
initiated against him and that his career advancement would not
be negatively impacted thereby.
(Doc. 54, Ex. 1-K.)
Wray’s
theory seems to be that Hinson’s return to duty the day after
Wray’s termination is evidence of some kind of plot by Johnson
to remove Wray from office because of negative public opinion
surrounding Wray’s investigation of a black officer.
But just
because race is incidentally implicated in this scenario does
not
support
the
claim
that
the
City
against Wray because of his race.
establishes
only
that
he
was
or
Johnson
took
action
Once again, Wray’s theory
removed
because
of
possible
political pressure and public perception about his targeting of
black officers, which is not actionable.
Wray’s last attempt to show pretext is based on evidence
(discussed earlier) that the City did not produce all emails
from Johnson and Miles’ email accounts in discovery.
claims
that
concealing
a
fact
finder
information
could
regarding
infer
that
Johnson’s
the
Wray now
City
was
discriminatory
actions and that its failure establishes that the given reasons
for suspending Wray were mere pretext for race discrimination.
To infer that the allegedly missing emails contained evidence of
28
race discrimination is a leap of faith simply too great for the
court to take, especially considering there is no evidence of
bad faith and the City began preserving emails two years before
the initiation of this lawsuit.
(Doc. 56, Ex. 13 at 25.)
Thus,
even viewing the evidence in the light most favorable to Wray,
the
court
cannot
rest
Wray’s
discrimination
claim
on
a
speculative inference of pretext based in the City’s inability
to produce allegedly incriminating emails that may not have ever
existed.
In
the
end,
the
ultimate
question
is
whether
Wray
has
adduced sufficient evidence to support an inference of racial
discrimination.
See Jiminez, 57 F.3d 369 at 378 (noting that to
show pretext, a plaintiff has the burden to show that the real
reason for the adverse employment action was discrimination).
Viewing the facts in the light most favorable to Wray, the most
nefarious scenario the court can discern is that the City and
Johnson placed Wray on administrative leave and constructively
discharged him because there was a public perception (whether
justified
or
not)
that
Wray
was
members of the GPD for investigation.
targeting
African-American
Wray has not produced any
evidence from which it can reasonably be inferred that Johnson’s
actions were based on the fact that he was Caucasian.
Thus, even assuming Wray could establish a prima facie case
of
race
discrimination,
he
has
29
failed
to
produce
sufficient
evidence that the City’s legitimate, non-discriminatory reason
was
pretextual.
See
Lightner,
545
F.3d
at
265
(finding
no
inference of racial discrimination where it was established that
plaintiff was suspended to stop his internal investigation for
ticket fixing).
C.
Remaining Claim for Declaratory Judgment
The court’s dismissal of Wray’s section 1981 claims leaves
Count I as the remaining claim of his lawsuit.
That claim seeks
a declaratory judgment as to the City’s obligation to defend and
indemnify Wray in connection with other litigation in which he
was named as a defendant.
not
arise
diversity
dispute
claim
under
exist
that
exists
federal
between
the
only
court’s
(Doc. 3 ¶¶ 57-61.)
law
Wray
or
the
and
the
Constitution,
Defendants.
exercise
through
The claim does
nor
There
of
jurisdiction
court’s
powers
to
is
over
no
this
exercise
supplemental jurisdiction pursuant to 28 U.S.C. § 1367(a).
Doc. 1 ¶¶ 5-6.)
does
(See
The court has notified the parties at the
outset that if the section 1981 claims resolved, it would likely
remand the action to the State court from which it was removed
for resolution of this quintessential state-law claim.
time has arrived.
That
Accordingly, having dismissed all claims over
which the court has original jurisdiction, the court declines to
exercise supplemental jurisdiction over Count I, the remaining
claim.
28 U.S.C. § 1367(c).
The action will therefore be
30
remanded
to
the
General
Court
of
Justice,
Superior
Court
Division, Guilford County, North Carolina.
III. CONCLUSION
For the reasons stated, therefore,
IT IS ORDERED that the motions for summary judgment by the
City
(Doc.
47)
and
Johnson
(Doc.
44)
are
GRANTED,
and
the
motions to strike by the City (Doc. 65) and Johnson (Doc. 63)
are DENIED AS MOOT.
IT IS FURTHER ORDERED that, having dismissed all claims
over
which
the
court
has
original
jurisdiction,
the
court
declines to exercise supplemental jurisdiction over Count I, the
remaining
claim,
Justice,
Superior
which
is
Court
REMANDED
Division,
to
the
General
Guilford
Court
County,
North
Carolina.
/s/
Thomas D. Schroeder
United States District Judge
August 19, 2013
31
of
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