ALEXANDER et al v. THE CITY OF GREENSBORO et al
Filing
318
MEMORANDUM OPINION AND ORDER signed by JUDGE THOMAS D. SCHROEDER on 12/18/2013. For the reasons stated, the court concludes that Cherry and Pryor have failed to produce sufficient evidence for a reasonable jury to find in their favor on the hostile work environment, tortious interference, and breach of contract claims. IT IS THEREFORE ORDERED that the motions for summary judgment by the City (Doc. 179 ), Wade (Doc. 183 ), and the GPD Defendants (Doc. 181 ) are GRANTED, and that the case be DISMISSED. IT IS FURTHER ORDERED that the motions to strike (Doc. 261 ; Doc. 191 in case 1:09CV934) are DENIED AS MOOT. Associated Cases: 1:09-cv-00293-TDS-JEP, 1:09-cv-00934-TDS-JEP(Solomon, Dianne)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
LAWRENCE ALEXANDER, JR., et al., )
)
Plaintiffs, )
)
v.
)
)
THE CITY OF GREENSBORO, et al., )
)
Defendants. )
_______________________________ )
LAWRENCE ALEXANDER, JR., et al., )
)
Plaintiffs, )
)
v.
)
)
THE CITY OF GREENSBORO,
)
)
Defendant.
)
_______________________________ )
1:09-CV-00293
1:09-CV-00934
MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, District Judge.
These
related
employment
actions,
originally
involving
forty plaintiffs, are before the court on defendants’ motions as
to the claims of the two remaining plaintiffs:
Cherry and Joseph Pryor.
City”);
David
Wray,
Charles Edward
Defendants City of Greensboro (“the
Randall
Brady,
and
Scott
Sanders,
all
officers in the Greensboro (North Carolina) Police Department
(“GPD”); and former Greensboro Councilmember Dr. Trudy Wade move
for summary judgment pursuant to Federal Rule of Civil Procedure
56 in case 1:09CV293 (Docs. 179, 181, 183); and the City moves
for summary judgment in case 1:09CV934 (Doc. 104).
Wray, Brady,
and Sanders also move to strike the appendices submitted by the
thirty-eight other original plaintiffs in case 1:09CV293, which
are relied upon by Cherry and Pryor, on the ground they violate
this court’s August 5, 2013 briefing order (Doc. 261), and the
City moves to strike Cherry and Pryor’s pro se response brief in
case 1:09CV934 on the ground it also violates the court’s prior
briefing order and this district’s local rules (Doc. 191).
For the reasons set forth below, the motions for summary
judgment will be granted, the motions to strike will be denied
as moot, and the actions will be dismissed.
I.
BACKGROUND
A.
Procedural History
These cases arise from the race discrimination claims of
forty current and former black officers of the GPD.
All claims
are based on events that occurred when Wray (white) was Chief of
Police (2003-‘06), 1 Brady (white) was Assistant Chief (2003-‘04)
and then Deputy Chief (2004-‘05), and Sanders (white) was an
investigator
in
GPD’s
Special
Investigation
(2001-‘06).
Wray resigned on January 9, 2006; Brady retired on
1
Division
(“SID”)
The prior police chief, Robert White, was black.
Upon Wray’s
advancement to chief, then-Deputy City Manager Mitchell Johnson
directed Wray to clean up perceived sloppiness and unfair treatment in
the GPD during White’s tenure. (Doc. 282–3 at 25.)
2
December
1,
2005;
and
Sanders
was
reassigned
on
January
12,
(See Doc. 192 in case 1:09CV293 at 10.) 2
2006.
In case 1:09CV293 (“Alexander 293” or the “Section 1981
case”), forty current and former GPD officers claimed racial
discrimination based on multiple theories.
plaintiffs
have
proceeded
with
various
Since that time, all
iterations
of
their
complaint, and the court has trimmed the claims after various
motions
by
defendants.
A
more
complete
history,
which
is
unnecessary for purposes of the present motions, is recounted in
Alexander v. City of Greensboro, 762 F. Supp. 2d 764 (M.D.N.C.
2011), and Alexander v. City of Greensboro, No. 1:09–CV–293,
2011 WL 3360644 (M.D.N.C. Aug. 3, 2011).
Following over four and one-half years of litigation and
discovery and after the briefing was completed on the pending
motions, thirty-eight plaintiffs resolved their claims, 3 and what
remains
before
the
court
in
Alexander
293
are
the
following
2
All citations to the record in this Memorandum Opinion refer to the
ECF page number, not to any internal document page numbering.
3
Specifically, Lawrence Alexander, Jr., and Steven A. Evans filed a
stipulation of voluntary dismissal with prejudice as to their
disparate treatment claims in both cases presently before the court.
(Doc. 171 in case 1:09CV293; Doc. 96 in case 1:09CV934.)
Antuan
Hinson’s Fourth Amendment and state law invasion of privacy claims had
survived defendants’ motions to dismiss but were withdrawn at his
deposition.
(Doc. 195–2 in case 1:09CV293 at 3.)
The thirty-eight
original plaintiffs other than Cherry and Pryor, including Alexander,
Evans, and Hinson then filed notices of voluntary dismissal with
prejudice as to all remaining claims on November 7, 2013. (Doc. 304
in case 1:09CV293; Doc. 220 in case 1:09CV934.)
3
claims by plaintiffs Cherry and Pryor: hostile work environment
based on race under 42 U.S.C. § 1981 against Wray, Brady, and
Sanders (collectively the “GPD Defendants”); breach of contract
against
the
City
(based
on
a
pre-litigation
confidentiality
agreement); and tortious interference with prospective economic
advantage
against
former
councilmember
Wade
(based
on
her
alleged interference with a settlement offer by the City).
Several months after Alexander 293 was initiated, the same
forty plaintiffs sued the City, alleging that the same conduct
constituted race discrimination in employment under theories of
disparate treatment and hostile work environment in violation of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et
seq. (“Title VII”).
(Doc. 1 in case 1:09CV934 (“Alexander 934”
or the “Title VII case”).)
Again, the court trimmed plaintiffs’
claims following various motions by the City.
See Alexander v.
City of Greensboro, No. 1:09–CV–934, 2011 WL 13857 (M.D.N.C.
Jan. 4, 2011); Alexander v. City of Greensboro, 801 F. Supp. 2d
429 (M.D.N.C. 2011).
all
been
dismissed, 4
The disparate treatment claims have now
and
the
thirty-eight
other
plaintiffs
resolved their claims in this Title VII case when they resolved
their
claims
in
the
companion
Section
4
1981
case.
So,
what
As referenced in note 2, the court allowed the disparate treatment
claims of Alexander and Evans to proceed, but those plaintiffs
voluntarily dismissed them.
4
remains of Alexander 934 are the same claims of hostile work
environment made by Cherry and Pryor in Alexander 293 but under
the rubric of Title VII.
B.
Factual Background
The briefing on the pending summary judgment motions, and
thus the development of the factual record, has been complicated
by Cherry and Pryor and their counsel.
In order to manage the
volume of materials for the then-pending forty plaintiffs, the
court originally ordered that all plaintiffs’ legal arguments be
submitted in a joint brief, and each plaintiff was permitted to
file separate appendices to include factual arguments and all
record evidence unique to him.
Doc. 97 in case 1:09CV934.)
for
the
filing
of
(Doc. 170 in case 1:09CV293;
Coincidentally with the due date
plaintiffs’
briefing,
Cherry
and
Pryor
discharged their counsel of record and, without permission of
the court, on September 5, 2013, filed their own response brief
that ignores the court’s briefing order and grossly exceeds the
page limitations allowed by the court and this district’s local
rules.
(See Doc. 131 in case 1:09CV934.) 5
Also on September 5,
counsel for plaintiffs filed their master response briefs and
5
At a November 7, 2013 hearing, Cherry and Pryor’s counsel indicated
that Cherry discharged them on September 4, 2013, the day before
plaintiffs’ response brief was due, and Pryor on September 5, 2013,
the day it was due; of course, by this time plaintiffs’ extensive
briefing was already substantially completed.
5
record evidence and, out of an abundance of caution because they
had not been discharged by this court, noted that they were
submitting
the
materials
on
behalf
plaintiffs, including Cherry and Pryor.
of
all
forty
original
(See Doc. 282 in case
1:09CV293 at 1–2 n.1; Doc. 132 in case 1:09CV934 at 1–2 n.1.)
During hearings on September 17 and October 13, 2013, the
court advised Cherry and Pryor’s counsel (in the presence of
Cherry and Pryor) that, given the then-impending trial date,
they
would
opportunity
not
to
be
discharged
retain
until
their
counsel. 6
substitute
clients
Cherry
had
and
an
Pryor
eventually engaged substitute counsel who entered an appearance
in both cases on November 7, 2013, well after all briefing was
completed,
calendar,
the
and
motions.
case
this
(Doc.
305
had
court
in
been
placed
had
begun
case
on
the
review
1:09CV293;
October
of
Doc.
the
221
trial
pending
in
case
1:09CV934.) 7
Plaintiffs’ master response brief for both cases (Doc. 282;
Doc. 132 in case 1:09CV934) sets forth several factual bases for
6
One of the court’s concerns centered on the thousands of pages of
discovery released by the City that were governed by a Protective
Order and Supplemental Protective Order entered into between the
parties and the claims by the City that Cherry and Pryor may have
violated the orders by releasing some of the information publicly.
(See Docs. 120 and 121 in case 1:09CV293; Docs. 60 and 61 in case
1:09CV934.)
7
For simplicity, from this point forward the court will cite to
documents in Alexander 293 unless otherwise noted.
6
their claims that the City (in the Title VII case) and the GPD
Defendants (in the Section 1981 case) created a racially hostile
work
environment
for
tenure as Chief.
all
original
plaintiffs
during
Wray’s
Cherry and Pryor proffer a wide range of
alleged conduct in their pro se brief, which rambles, overlaps
the master response, is at times difficult to decipher, and is
devoid of record support.
Cherry
and
Pryor’s
pro
If the court were to rely solely on
se
brief,
a
result
they
presumably
intended by filing it, its gross deficiencies would render its
adequacy as a response problematic at best for Cherry and Pryor.
For
that
reason
and
those
noted
later
in
this
opinion,
therefore, the court will consider all materials filed by or on
behalf of Cherry and Pryor that contain admissible evidence and
argument.
Accordingly, the court sets out the factual record
from these materials in the light most favorable to these two
remaining plaintiffs as non-moving parties.
For an even more
thorough discussion of the context in which these claims arose,
the reader should consult the court’s several prior opinions
noted earlier.
1.
Hostile work environment claims
a.
The “black book” and other lineups
Throughout this litigation, plaintiffs’ central claim has
been
that
the
GPD
Defendants
maintained
one
or
more
“black
books” containing photographs of black GPD officers that were
7
used to falsely implicate plaintiffs and other black officers in
criminal wrongdoing.
Indeed, it was on this basis that the
court permitted plaintiffs’ claims to survive initial motions to
dismiss.
See
Alexander
293,
762
F.
Supp.
2d
at
794-95.
Although all plaintiffs have consistently claimed that several
such
books
existed
illegitimate
apparent
and
that
investigations
that
plaintiffs
they
of
lack
black
were
used
to
conduct
officers,
it
is
admissible
evidence
to
now
support
this central claim. 9
The
main
“black
book”
discussed
by
plaintiffs
contains
photographs of 19 black GPD officers, including Pryor, among 114
photographs. 10
argue
that
Defendants admit that such a book existed but
it
was
created
as
a
legitimate
aid
in
the
investigation of a sexual assault reported to the GPD by an
alleged victim who implicated a uniformed black GPD officer.
(Doc. 192 at 23–28.)
The record evidence regarding this lineup
book is found in Sanders’ deposition and its attached exhibits.
(Docs. 196–3, 196–4, 196–5, and 198–6)
Sanders and Sergeant Tom
Fox interviewed the alleged victim, who reported that she was
assaulted in the middle of August 2004 by a black uniformed
9
For example, Cherry and Pryor’s pro se brief argues that as many as
ten “black books” existed, but, as noted herein, they provide no
record evidence for most of them.
10
In the pro se brief, Pryor states that he was pictured in this
lineup book. Defendants do not dispute this assertion.
8
officer she described as dark-skinned, short-haired, and short
in
stature. 13
(Doc.
198–6
at
5–6.)
In
response,
Sanders
compiled a lineup book containing photographs of the 19 black
officers
who
were
on
was
photographs.
not
during
the
timeframe
(Doc. 196–4 at 5.) 14
allegedly occurred.
victim
duty
able
to
identify
her
(Doc. 196–4 at 10.) 15
the
assault
However, the alleged
assailant
from
the
Sanders further testified
that he did not show this lineup book to anyone but the alleged
victim in the sexual assault investigation.
Plaintiffs
have
not
produced
any
(Doc. 196–5 at 4.)
admissible
evidence
to
contradict this statement, and any suggestion otherwise is only
speculation
based
on
inadmissible
hearsay.
Moreover,
Pryor
concedes he was unaware that his photograph was in this line-up
book while it was used and did not know about its existence
13
Pryor contends that this is evidence that the book was not used for
a legitimate investigatory purpose because he is six feet three inches
tall. (Doc. 131 in case 1:09CV934 at 47.)
14
The lineup book, attached to the GPD Defendants’ brief, consisted of
19 pages, each containing a photograph of one of the 19 officers and
five “fillers.” (Doc. 197–3.)
15
Sanders testified that the alleged victim only recognized original
plaintiff Steven Snipes out of the 19 officers but said that he was
not the assailant.
(Doc. 196–4 at 10.)
Later, Sanders showed the
alleged victim a photograph of original plaintiff Ahmed Blake.
The
victim told Sanders that Blake could be the assailant, but she could
not be sure.
(Id.)
Based on that inconclusive interview, the
investigation remained open with Blake as the primary suspect.
(Id.
at 10–11.)
There is no information as to any further activity
regarding the investigation, and thus it should not be inferred from
this Memorandum Opinion that any assessment of Blake’s guilt exists.
9
until it “went public” as the result of a newspaper report.
(Doc. 114-6 at 24; Doc. 282-2 at 9; see also Doc. 114-6 in case
1:09CV934 at 35 (EEOC Intake Questionnaire noting “7/2005” as
earliest date of alleged harm).)
Another
lineup
book,
containing
the
photographs
of
six
black GPD officers (not including Cherry or Pryor), was shown in
late 2002 or early 2003 in connection with the investigation of
a possible assault at a bachelor party which Sanders understood
only black officers attended.
9–11.)
Two
of
the
three
(Doc. 196–4 at 2–4; Doc. 196–3 at
officers
pictured
in
this
lineup
admitted that they did not learn that their photographs had been
used until long after Wray and Brady left the GPD and Sanders
had been reassigned.
(Doc. 196–8 at 10–11 (Allen Wallace); Doc.
196–7 at 6 (Steven Snipes).)
Original plaintiff Norman Rankin
knew that his photograph had been shown to a dancer at the
party’s location; he originally called Sanders to express his
objection, but eventually apologized.
(Doc. 195–7 at 5.)
After
Sanders received information that a white officer may have been
present
at
the
party,
Sanders
showed
photographs
of
all
GPD
employees, white and black, to his informant, but the informant
was unable to identify the white officer from the photographs.
(Doc.
196–3
at
6–8.)
Plaintiffs
have
not
produced
any
admissible evidence that these lineups were used for any purpose
other than to investigate the possible assault reported at the
10
bachelor party, or that Cherry or Pryor were aware this book
existed until after three other officers met with City Manager
Mitchell Johnson in August 2005 to raise concerns about Wray,
which was well after the lineups were allegedly used. 16
(See
Doc. 131 in case 1:09CV934 at 21.)
Sanders
also
showed
officers on some occasions.
plaintiff
William
Graves’
individual
photographs
of
black
For example, he displayed original
photograph
to
a
fireman
from
High
Point who had witnessed an arrest outside a nightclub in order
to verify Graves’ identity as the arresting officer.
5 at 4–5.)
(Doc. 196–
Sanders also showed photographs of Snipes and GPD
officer Julius Fulmore (the lone plaintiff in the related case
1:09CV373) to an undisclosed informant in connection with an
investigation
of
Fulmore
following
the
discovery
of
drug
paraphernalia in a hotel room he had rented on June 2, 2004.
(Id.
at
9—10.)
The
informant
was
asked
to
verify
Snipes’
identity because the informant had previously indicated that she
knew
him.
photographs
(Id.
of
at
Snipes
10.)
and
Finally,
Rankin
were
Sanders
shown
testified
to
an
during a Drug Enforcement Administration investigation.
16
that
informant
(Id. at
Three original plaintiffs – William Graves, Stephen L. Hunter and
Allen Wallace - met with Johnson, Wray, the City Attorney, and a local
attorney in August 2005 to discuss the treatment of black officers
under the Wray administration as well as Wray’s management style and
practices. (Doc. 282–3 at 43; Doc. 282-8 at 3.)
11
12.)
As with the “black books,” there is no evidence that
Cherry and Pryor were aware of any of these photographs being
shown until the August 2005 meeting with City Manager Johnson. 17
(See,
e.g.,
conceding
Doc.
he
112-1
cannot
say
in
case
when
he
1:09CV934
became
at
aware
24-30
of
(Cherry
information
regarding black books).)
Apart
from
these
incidents,
plaintiffs
have
produced
no
admissible evidence that any photograph of a black GPD officer
was shown to any other person. 18
b.
Cherry
and
Investigations and other alleged
treatment of black GPD officers
Pryor
now
rely
heavily
on
disparate
various
GPD
investigations of black officers, including some who were not
ever plaintiffs in these cases, to bolster their hostile work
environment
within
the
claims.
GPD
Ordinarily,
depended
on
the
the
type
type
of
of
investigation
allegation:
investigations of officers for alleged criminal violations were
ordinarily
conducted
by
the
GPD’s
Criminal
Investigation
17
Assistant Chief Tim Bellamy (black) also testified that he was aware
of some photographs of some original plaintiffs having been shown to
informants in some situations, but he declined to disclose their
identities or the situations, and plaintiffs never moved to compel
this information.
(Doc 282–16 at 19–22.)
Thus, even assuming that
such displays occurred, the court is left with no basis on which a
jury could reasonably determine they were improperly based on race.
18
Pryor testified that upon his employment at the GPD there was an
“urban legend” that the GPD kept books of photographs of black
officers. (Doc. 114-6 in case 1:09CV934 at 23-24.) No other evidence
was provided, however.
12
Division (“CID”), which had a chain of command that provided
reporting and oversight; investigations of suspected violations
of internal rules and policies were handled as civil matters by
Internal Affairs; and the gathering of special intelligence (to
be passed on to the appropriate investigative division of the
GPD) was ordinarily handled by SID, which GPD directives state
has no investigative function and which had less oversight and
fewer procedural protections.
practice
under
Wray’s
Cherry and Pryor argue that the
administration
of
investigating
black
officers using the GPD’s SID rather than its CID violated GPD
directives and is evidence of targeting of black officers that
contributed to their hostile work environment.
(Doc. 282 at 8–
11.)
For the sake of clarity, the specific investigations and
disparate treatment claims of Cherry and Pryor will be set out
first before events relating to other officers are identified.
i.
In
2003,
while
conflict
with
Cherry’s
superior.
Cherry
Wray
Captain
was
Bill
assistant
Ingold,
According
to
a
white
Cherry,
doorway of his office and cursed at him.
1:09CV934 at 49.)
chief,
Cherry
officer
Ingold
had
a
who
was
entered
the
(Doc. 112–1 in case
Cherry responded by going to Ingold’s office
and requesting an apology.
(Id. at 50.)
Wray summoned Cherry
to his office and threatened an Internal Affairs investigation
13
if Cherry did not apologize to Ingold.
apologize
if
Ingold
would
apologize
(Id.)
to
Cherry agreed to
him
in
return;
parties then apologized and went their separate ways.
51–52.)
the
(Id. at
Cherry told then-Chief White (who is black) about the
incident but, according to Cherry, it was never investigated,
and Wray was elevated to chief without ever reporting he had
violated GPD directives by not investigating Ingold’s behavior.
(Id. at 52–53.)
about
the
Cherry never filed a grievance or complaint
handling
of
the
incident.
(Doc.
112-1
in
case
1:09CV934 at 52.)
When
Wray
became
chief,
he
transferred
undesirable position as field lieutenant. 19
Cherry
claims
he
was
passed
over
several
Cherry
to
an
(Doc. 282–1 at 18.)
times
for
better
assignments and promotions in favor of white officers, implying
that Wray’s explanation that Cherry needed more field experience
was a pretext for discrimination.
Either
in
2004
or
2005, 20
(Id.)
Cherry’s
daughter
made
an
allegation of misdemeanor child abuse against him, which her
19
In the pro se brief, Cherry states that this job required him to
work 12-hour days and spend time away from his family, including his
daughter with whom he was attempting to build a relationship.
(Doc.
131 in case 1:09CV934 at 13–14.)
This claim does not appear in the
record, either in Cherry’s deposition or interrogatory responses.
(Doc. 282–1 at 19–22.)
20
Cherry’s interrogatory responses indicate that this occurred “[i]n
about 2004,” (Doc. 281–1 at 20), but his pro se brief places the
incident in early 2005 (Doc. 131 in case 1:09CV934 at 15).
14
mother, another GPD police officer, reported.
case
1:09CV934
at
59.)
Cherry
testified
(Doc 112–1 in
that
CID,
in
investigating the case, gave the mother a “shell report” to take
to the magistrate in order to obtain a warrant for Cherry’s
arrest. 21
(Id.)
Cherry spoke to Wray about the incident, but
Wray refused to intervene and, when approached by Cherry in the
gym, commented he would “let the chips fall where they may”
regarding
CID’s
investigation.
(Id.
at
60.) 22
Thereafter,
Cherry’s daughter recanted her allegation of child abuse, and
the arrest warrant was recalled.
at 70.)
(Doc. 112–1 in case 1:09CV934
The status of the CID investigation was subsequently
changed to “Inactivated.”
(Id.)
Cherry contends that it should
have been changed to “Unfounded” (id. at 61), and in his pro se
21
The pro se brief further explains Cherry’s exception to the “shell
report” because he represents that although the general procedure is
for magistrates not to issue a warrant in a child abuse case prior to
an investigation by the Juvenile Services Division, such procedure was
bypassed in his case. (Doc. 131 in case 1:09CV934 at 15.) However,
nothing indicates that the procedure used was impermissible.
22
In his pro se brief, Cherry says Wray called his domestic situation
a “mess,” while claiming generally (without further factual support)
that several white officers who had similar disputes were not so
insulted.
(Doc. 131 in case 1:09CV934 at 15.)
Cherry also claims
that while the investigation into the child abuse accusation was
ongoing, he occasionally used a GPD service (that allowed any member
of the public to request police supervision, presumably when a family
member was threatened) to ensure that his daughter was picked up or
dropped off at the start and end of his visitation time.
ThenAssistant Chief Bellamy (black) told him that if he continued to
utilize the City resources in this fashion, his job would be in
danger.
Cherry claims that Bellamy represented that this order came
from above him, presumably from Wray or Brady. (Id. at 15–16.)
15
brief claims the CID investigator told him that it could not be
changed even though the daughter’s testimony was used to obtain
the warrant in the first place (Doc. 131 in case 1:09CV934 at
17).
Cherry
speculates
that
Wray
chose
to
label
the
investigation as “Inactivated” in order to leave the door open
for
future,
later
arguably
investigation
unwarranted,
of
the
same
conduct
by
classified the allegation as “Unfounded.”
1:09CV934 at 72.)
(Id.) 23
investigation.
Internal
A
Affairs
(Doc. 112—1 in case
Cherry could not recall if he ever filed any
written grievance regarding this incident.
(Id. at 61.)
Cherry testified in his deposition that he was involved in
Brady’s investigation into original plaintiff Steven Hunter for
alleged
fraudulent
reporting
of
time
worked
at
an
off-duty
assignment, but Cherry could not recall when this had occurred.
(Id.
at
47.)
Cherry
concluded
that
it
was
an
“easy
investigation” and that a memorandum was written that cleared
Hunter of any wrongdoing.
(Id.)
However, Cherry testified,
evidence that a white officer had fraudulently reported off-duty
time was not investigated.
(Id. at 47–48.) 24
23
In the pro se brief, Cherry represents that an Internal Affairs
sergeant told him there was “no way” that his criminal investigation
should have yielded a finding of “Inactivated.”
(Id. at 16–17.)
There is no record evidence of this.
24
Cherry also represents in his pro se brief that he filed a complaint
with the GPD claiming that he was being defrauded (in an unidentified
manner) and that the GPD’s Professional Standards Division failed to
16
Finally,
Cherry
stated
in
his
discovery
responses
that
“[m]inority officers are subjected to being called derogatory
terms like ‘sorry sack of s***’ by white commanders and are not
disciplined,” that once a white GPD Captain “turned to Cherry in
a hallway, blocked his path, and called him a ‘jerk,’” and that
a white assistant chief would not allow his complaint about the
latter incident to be investigated.
(Doc. 282-1 at 21–22.)
No
further evidence as to either of these is presented by Cherry.
ii.
Pryor
testified
Pryor
in
his
deposition
and
stated
in
his
interrogatory responses that soon after he joined the GPD in
2003, he was the only black officer in his squad and heard a
fellow squad member say something to the effect of “they can’t
get rid of our token black man.”
at 7; Doc. 282–2 at 8.)
(Doc. 114–6 in case 1:09CV934
He alerted his sergeant, Patricia Buser
(white female), who directed the offending officer to apologize
but did not initiate an investigation or force the officer to
apologize
publicly.
(Doc.
114–6
in
case
1:09CV934
at
8–9.)
conduct a proper administrative investigation into his complaint.
(Doc. 131 in case 1:09CV934 at 17–18.) This appears to be a reference
to testimony in his deposition in which Cherry mentions a complaint he
made regarding his child support action involving the mother of his
child (which SID Captain Matt Lojko investigated and the district
attorney declined to pursue because it was a civil dispute).
(Doc.
112-1 in case 1:09CV934 at 64-67.) He also testified that a summons
was not “handled properly” regarding a dispute he had with his child’s
mother about her alleged improper contacts with him.
(Id. at 68.)
The second complaint does not appear in any briefing.
17
Pryor
then
went
Phifer (black).
to
his
captain,
(Id. at 11.)
original
plaintiff
William
Phifer told Pryor that he would
“send it back down to [sic] the chain of command to . . .
Lieutenant [Janice] Rogers, to do the investigation.”
11–12.)
(Id. at
Pryor testified that Rogers (white) did not conduct an
investigation, but Pryor was not certain whether Phifer ever
alerted Rogers to Pryor’s complaint.
(Id. at 12–14.)
While working off-duty at a Harris Teeter grocery store in
late 2005, Pryor arrested a man for public disorder.
15–16; Doc. 282–2 at 8.)
(Id. at
As Pryor described the incident, the
man entered the store and, upon seeing Pryor, “said something to
the effect of this is a stick up” and then started smiling.
(Doc.
114-6
in
case
1:09CV934
at
15.)
The
man
continued
shopping and when he came back through the line Pryor told him
he should not joke like that.
(Id.)
The man “said something to
[the] effect of I know or something, I don’t care.”
(Id.)
Pryor then told him he was under arrest, the man resisted, and
Pryor used mace to restrain him.
(Id. 15–16.)
Pryor brought
the man to a magistrate, who found probable cause for the arrest
for public disorder.
(Id. at 16.)
A few days later, however,
the GPD determined it would dismiss the charge against the man
because there was insufficient probable cause.
(Id. at 17.)
Sergeant Buser later contacted Pryor and told him that he would
be criminally charged for assaulting the suspect.
18
(Id. at 18–
19.)
Pryor in turn contacted the police union attorney, Bill
Hill, who advised him that he was about to be arrested and
should prepare to surrender his badge and gun.
8.)
(Doc. 282–2 at
No criminal investigation ever occurred, however.
114–6 in case 1:09CV934 at 20.) 25
(Doc.
The GPD instead conducted an
administrative investigation and issued Pryor a Division Level
Reprimand.
(Doc.
114–6
in
case
1:09CV934
at
22.)
Pryor
contends that the magistrate’s finding of probable cause for the
arrest rendered any discipline inappropriate.
(Id.)
However,
Pryor declined to pursue an appeal because, in his words, “he
had gone from having to turn in his badge to a Division Level
Reprimand, and decided to take his lumps.”
(Doc. 282–2 at 9.) 26
iii. Other officers
Officer James Hinson, who is black but was not a plaintiff
in these cases, found a GPS tracker on his GPD vehicle on June
4, 2005.
(Doc. 282–8 at 7.)
According to Dwight Crotts, former
25
In the pro se brief, Pryor claims he went to Phifer to discuss the
charges and that this ultimately led to Wray’s decision to drop the
charges.
(Doc. 131 in case 1:09CV934 at 45.)
Pryor’s deposition
testimony, the only admissible evidence on this point, contradicts
this claim. (Doc. 114–6 in case 1:09CV934 at 21.)
26
The pro se brief articulates Pryor’s contention that white officers
who arrested suspects without probable cause were not investigated.
(Doc. 131 in 1:09CV934 at 45–46.) The only factual support is found
in Hastings’ deposition, where he testified that two white GPD
officers arrested a suspect without probable cause and that Wray told
him to shut down the criminal investigation because the entire case
was being transferred to Internal Affairs. (Doc. 282–14 at 6.)
19
Captain
of
SID,
Hinson
had
been
investigated
involvement in an assault and with a prostitute.
at 15.)
2004
for
alleged
(Doc. 282–18
The GPD Internal Affairs division had determined in
that
there
was
no
basis
282–8
at
to
go
investigation
(Doc.
5–6),
nevertheless.
(Doc 282–18 at 29, 32–33.)
forward
but
SID
with
reopened
the
it
After the tracker was
discovered, Wray and new SID captain Matt Lojko retained two
former GPD officers to investigate several allegations against
Hinson, most of which had already been considered and dropped in
the previous Internal Affairs investigation.
Doc. 282–8 at 5–6.)
(Id. at 34–35;
Crotts advised the former officers that
Hinson had already been investigated for the same allegations
and cleared.
regarding
the
(Doc. 282–18 at 33.)
change
in
When Crotts questioned Wray
procedure
in
bringing
back
former
officers to conduct a second investigation, Wray responded that
he could order parking enforcement to conduct an investigation
if he pleased.
(Id. at 39.)
Apparently, nothing resulted from
this second investigation, as plaintiffs have not put forth any
evidence regarding it or its outcome.
At the time of the Hinson
investigation, to the extent he was aware of it, Pryor believed
it was “probably for just cause.”
(Doc. 282-2 at 9.)
As noted
infra, however, Wray’s conduct relating to the investigation of
Hinson, once revealed, became the subject of intense scrutiny by
20
City
Manager
Johnson
and
ultimately
contributed
to
Wray’s
departure from the GPD.
GPD Officer Fulmore also had a GPS tracker placed on his
vehicle by the GPD. 27
(Doc. 282–18 at 51–52.)
Fulmore claimed
he was investigated at least ten times between October 2002 and
March 2005 (see Doc. 90–3 in case 1:09CV373), had his photograph
shown to several criminals and others in an attempt to link him
to criminal activity (see Doc. 89–1 in case 1:09CV373 at 85–
100), and was suspended with pay for nine months following an
investigation of the hotel incident previously noted (see Doc.
90 in case 1:09CV373 at 4–18; Doc. 89 in case 1:09CV373 at 1–4
(arguments in brief)).
Sanders and another officer conducted
the investigation of Fulmore’s conduct in the hotel incident
(Doc. 79–34 in case 1:09CV373) and presented their findings to
Assistant District Attorney Howard Newman (id. at 7).
Newman
determined
charge
Fulmore
evidence
that
with
a
that
there
crime.
the
was
insufficient
(Id.)
evidence
Plaintiffs
Fulmore
have
investigations
to
not
provided
were
without
foundation, but the evidence, viewed in the light most favorable
to
plaintiffs,
does
indicate
that
the
GPD
continued
its
investigation of the hotel incident beyond the time the North
27
Cherry concedes that he cannot say he learned about the Fulmore
tracker before Wray’s resignation on January 9, 2006. (Doc. 112-1 in
1:09CV934 at 46.)
21
Carolina State Bureau of Investigation (“SBI”) determined that
the
complaining
Fulmore’s
witness,
claims
that
then
his
an
inmate,
photograph
lacked
was
credibility.
shown
to
various
criminals, however, are supported only by inadmissible hearsay.
Cherry and Pryor claim that the treatment of Fulmore contributed
to
their
hostile
investigations
are
impermissibly
treatment.
work
environment
evidence
targeted
and
that
black
that
the
officers
the
continuous
GPD
for
Defendants
unreasonable
(Doc. 282 at 24–25.)
GPD Officer Stacey Morton, an original plaintiff in these
cases,
was
terminated
after
an
August
26,
2003
use-of-force
incident during which he helped restrain a suspect who had been
handcuffed by a fellow officer. 28
at 51.)
(Doc. 282–2 at 2; Doc. 282–1
Morton stated in his interrogatory responses that no
GPD officer had been terminated for conduct like his in twenty
years.
board
(Doc. 282–2 at 2.)
voted
5-0
to
On November 11, 2003, an appeals
reverse
Morton’s
termination,
adhered to the decision to terminate him.
also
tried
for
criminal
trial on January 28, 2004.
assault
Deputy
City
Manager
(Id.)
Johnson
and
(Id.)
acquitted
but
Morton was
after
a
bench
After a hearing before then-
(who
would
later
become
Manager), Morton was reinstated on February 27, 2004.
28
Wray
City
(Id.)
Morton’s termination letter was signed by Crotts in his capacity as
Captain of SID. (Doc. 282–2 at 2.)
22
Thereafter, Wray transferred Morton from the more elite “Crime
Abatement Team” to patrol in an undesirable part of Greensboro,
reduced his rank, and suspended him without pay for 160 hours.
(Id.)
According to Johnson, he personally believed Wray had
“overemphasized
the
event”
as
part
of
Wray’s
tough
stand
on
officer misconduct (Doc. 282-3 at 20–21), but Morton felt that
he had been targeted because of his race (Doc. 282–2 at 3).
Officer
Darrin
criminally
Davis,
investigated
another
months
original
after
plaintiff,
an
administrative
investigation had closed on a use-of-force incident.
1 at 26.)
was
was
(Doc. 282–
Wray’s impetus for opening the criminal investigation
allegedly
an
anonymous
letter
received
by
the
Guilford
County District Attorney’s office claiming that an effort to
report
the
incident,
against
incident
original
his
suspect.
had
gone
unheeded.
plaintiff
white
co-worker
Jonathan
for
(Doc. 282–1 at 33.)
(Id.)
Heard
allegedly
In
filed
another
a
report
strip-searching
a
After Brady took control of the
Internal Affairs investigation, the white officer received no
punishment
while
Heard
district.
(Id.)
Plaintiffs have provided no evidence of the
underlying
facts
of
was
these
transferred
incidents
to
to
an
indicate
undesirable
whether
the
treatment of the black officers was improper.
Original
interrogatory
plaintiff
response
Kevin
that
a
23
Chandler
woman
with
stated
whom
he
in
his
had
been
romantically involved broke into his house in March 2004.
at 18.)
(Id.
Accordingly to Chandler, the woman cut his face with a
blade, he fled the scene, and she subsequently called 911 and
accused him of jumping on her.
(Id.)
Chandler was charged with
criminal assault and suspended with pay.
charges
were
eventually
dropped,
administrative discipline. 29
but
(Id.)
The criminal
Chandler
was
given
(Id.)
According to his interrogatory response, original plaintiff
Brian James was interrogated by Sanders and Fox on March 28,
2005.
(Id. at 39.)
James signed a “criminal investigation
waiver” and was under the impression that Sanders and Fox were
investigating someone else.
(Id.)
Sanders questioned James
about his relationship with a particular individual and played a
recording
assured
of
James
James
talking
there
to
were
conversations on his part.
no
that
individual,
recordings
(Id. at 40.)
of
but
Sanders
inappropriate
After the interview,
James was under the impression that the investigation into his
conduct
was
over.
But,
in
fact,
Wray
told
James,
“[d]on’t
worry, I don’t think anything differently about you, they had to
29
Cherry and Pryor included this incident in the pro se brief;
however, they rely on inadmissible hearsay evidence that (1) Wray,
Brady, and Crotts prevented a black officer from responding to the
scene “presumably because he was black,” and (2) a special prosecutor
brought in to handle the case from Forsyth County remarked that he
“had nothing to even argue here,” referring to the evidence against
Chandler.
(Doc. 131 in case 1:09CV934 at 28–29.)
Chandler’s
interrogatory response relies on the same hearsay.
(Doc. 282–1 at
18.)
24
go through this process because of some allegations that were
made.”
(Id. at 40–41.)
Later in 2005, James asked Brady if SID
thought he was dirty, and Brady responded, “[n]o, you’re clean
as a whistle.”
(Id. at 41.)
Brady added that there was not a
piece of paper in the SID office with James’ name and said that
“the good thing about this program is that if our investigation
is unfounded, it’s like it never existed.”
(Id.)
James told
Brady that he wanted something in his record to show he had been
cleared,
but
James
found
out
that
an
Internal
Affairs
investigation would have to be initiated to accomplish that.
(Id.)
Yet, no investigation ever occurred.
(Id.)
Soon after,
however, Wray transferred James to CID and commented that James
had
almost
“derailed
investigation.
himself”
with
his
conduct
during
the
(Id.)
Crotts testified that, based on special intelligence, the
GPD
set
up
a
sting
operation
in
which
a
prostitute
would
proposition an unsworn black GPD employee after he was suspected
of
engaging
in
prostitution
(Doc. 282–18 at 24.)
administrative
activity
at
a
Greensboro
club.
When the operation was discovered, an
investigation
commenced,
and
the
employee
was
either terminated or resigned before he could be terminated.
(Id. at 25.)
Crotts could not recall whether the employee was
ever prosecuted for the alleged prostitution activity (id.), and
25
there is no record evidence that the investigation was without
basis.
Officer
Gary
Hastings
(white),
former
Captain
of
CID,
testified that in 2005 while he was in CID, a bi-racial GPD
officer was investigated for allegedly stealing gasoline from
the City for his personal use.
at 62.)
should
(Doc. 282–14 at 5; Doc. 282–18
When Internal Affairs determined that the allegations
not
be
sustained,
Crotts
testified,
Wray
exhibited
“disgust,” and Crotts believed he might be transferred out of
Internal Affairs for coming to this conclusion.
64–65.)
(Doc. 282–18 at
There is no evidence that Wray ever took any action
against any Internal Affairs investigators in the case, however.
Finally, Hastings testified that when Wray assigned Rankin
to be a homicide investigator for SID, Wray said, “I’m hoping
Rankin’s
dressing.”
face
over
there
is
going
(Doc. 282–14 at 4.)
to
buy
us
some
window
Plaintiffs have provided no
date for this occurrence, and the submitted portion of Hastings’
deposition
fails
to
provide
any
context.
Presumably,
it
occurred while Wray was chief. 31
31
Additional alleged incidents of disparate treatment are related in
the City Attorney’s investigatory report, discussed infra, but they
are not specifically referred to or relied upon by Cherry or Pryor in
any of their filings.
26
c.
The
original
Chain of command under Wray
plaintiffs’
master
response
brief
contends
that the way Wray configured his chain of command contributed to
a hostile work environment.
(Doc. 88 ¶¶ 61, 70, 74, 90, 107.)
According to Officer Richard David Ball, who was employed by the
GPD
from
1976
through
2005
(Doc.
282–12
at
3),
Sanders,
as
investigator for SID, was authorized to report directly to Wray
and Brady, thus bypassing the commander of Internal Affairs (id.
at 20).
Sanders’ supposed supervisor, Officer Craig McMinn,
testified that many times he had no idea what Sanders was doing.
(Doc. 282–17 at 13.)
and-balances
system
According to McMinn, the built-in checksthat
the
chain
of
command
provided
was
missing when Sanders reported directly to Brady, whom McMinn did
not consider to be a seasoned investigator.
(Id. at 14–15.)
Additionally, Hastings stated that when he told Wray that GPD
policy required all criminal investigations of officers to be
conducted by CID, Wray responded, “I am the policy.”
(Doc. 282–
14 at 7.)
Cherry and Pryor contend that the chain of command Wray
utilized
for
his
administration,
focusing
on
Sanders’
free-
wheeling role as SID investigator in particular, allowed the GPD
Defendants
to
target
black
officers
with
contributed to the hostile work environment.
38.)
27
impunity
and
thus
(Doc. 282 at 36–
d.
High-ranking black
decision-making
officers
excluded
from
Cherry and Pryor also argue that the exclusion of highranking
black
officers,
particularly
Assistant
Chiefs
Tim
Bellamy and Annie Stevenson, from important meetings contributed
to
a
hostile
work
environment
at
the
GPD.
In
particular,
Bellamy testified that he was excluded from weekly closed-door
meetings that were attended by lower-ranking officers.
282–16 at 7–11.)
(Doc.
Once he was promoted to assistant chief, he
was warned by other high-ranking black officers that there were
some meetings he would not be invited to and that “they kind of
turned
secret
Bellamy
meetings
believed
that
into
such
secret
“secret
police.”
(Id.
meetings”
ability to perform his job as assistant chief.
at
undermined
11.)
his
(Id. at 12–13.)
Cherry and Pryor argue that Wray maintained an inner circle
of
white
officers
to
conduct
his
administration’s
racially-
biased investigations and which contributed to the hostile work
environment that existed at the GPD. 33
The record is unclear
whether Cherry and Pryor knew about the secret meetings before
33
The City Attorney’s internal analysis of the Wray administration,
discussed infra, noted that Wray held “informal” meetings of his
command staff after hours at a local restaurant, and when Assistant
Chief Stevenson questioned whether black commanders were being
excluded, Wray extended an invitation to them as well – “but it seems
that they never attended such a meeting.” (Doc. 282-8 at 25.)
28
August 2005. 34
e.
City Legal
reports 35
and
Risk
Management
Associates
The original plaintiffs also rely on the findings contained
in two reports from investigations into alleged racial and other
issues within the GPD that were commissioned by City Manager
Johnson
following
his
August
2005
meeting
with
three
of
the
original plaintiffs.
One report was issued by the City’s legal
department
the
“City
Legal
Management
following
Report”),
City
attorney’s
while
(the
Associates
the
“RMA
consulting firm retained by Johnson.
other
investigation
was
Report”),
issued
an
by
(the
Risk
independent
See Alexander 293, 762 F.
Supp. 2d at 778–79, 784.
The City Legal Report (Doc. 282–8) was commissioned first
by Johnson.
Following his August 2005 meeting with three GPD
officers about their concerns over Wray’s conduct, Johnson felt
he needed an investigation independent of the GPD that would
address
more
the
mounting
specifically
criticisms
permit
the
of
City
Wray’s
to
administration
defend
itself
and
against
outside charges involving Wray and the GPD (Doc. 282–3 at 4950).
By this time, Wray had already dismissed the increasing
34
Cherry’s interrogatory response states only that Bellamy told him
“[w]hile Wray was Chief” that white officers had secret meetings and
made decisions without his knowledge. (Doc. 282-1 at 20.)
35
Cherry and Pryor do not rely on either report in their pro se brief.
29
complaints about his handling of police matters in his weekly
meetings with Johnson (Wray was a direct report to Johnson, as
city manager), and Johnson had provided written responses to the
local NAACP’s pointed June 21, 2005 letter (Doc. 282–4) raising
concerns about Hinson, the “black books,” and other matters.
Johnson had also met with local NAACP President Gladys Shipman
and told her, based on Wray’s representations, “with every ounce
of integrity that I have that we didn’t have a black book, that
we were not targeting black officers.”
(Doc. 282-3 at 32-34.)
Moreover, at around the same time, the SBI requested a meeting
with
Johnson
and
independently
expressed
GPD’s handling of investigations.
concerns
(Id. at 46–47.)
about
the
In light of
complaints about Wray’s management style from black and white
officers alike and the SBI’s concerns, Johnson was beginning to
have serious doubts about the reliability of the information
Wray was giving him.
(Id. at 34.)
Although the City Legal Report was commissioned before the
RMA
Report,
it
was
not
actually
released
until
after
Wray
resigned in January 2006 – that is, after the RMA Report was
made public.
The City Legal Report discussed the GPD’s internal
investigations of several of the individual plaintiffs.
The
report is addressed in more detail in this court’s opinion in
Alexander 293, 762 F. Supp. 2d at 778, 796–803, where many of
the
plaintiffs
were
attempting
30
to
proceed
on
a
theory
of
disparate treatment.
The report provides instances of alleged
wrongful conduct directed toward certain GPD officers, yet the
vast majority of the plaintiffs are not mentioned in it.
concluded
that
the
“facts
gathered
suggest
the
It
following
improprieties” by the GPD Defendants and others during the Wray
administration,
Brady,
or
including:
another
assistant
original
documents
(however,
none
specifically
of
(1)
on
chief
pertaining
the
in
administrative
pressure
on
administrative
findings,
pressure
on
Phifer
recommendation
in
the
ordered
to
original
mentioned
several
plaintiffs’
the
discipline
and
Teeter
Wray,
alteration
of
investigations
investigations
report);
increase
Harris
the
internal
subordinates
to
occasions,
(2)
to
improper
change
evaluation,
Pryor’s
is
their
including
disciplinary
incident;
(3)
disparate
treatment of various officers, such as Hinson, James, Rankin,
Patterson, Fulmore, Alexander, and Hunter, relating to many of
the investigations detailed above (although the report does not
charge
basis);
that
the
(4)
discrimination,
investigations
the
such
appearance
as
the
themselves
of
were
racial
re-opening
without
targeting
of
the
legal
and
Hinson
investigation contrary to GPD policy, exclusion of Bellamy from
meetings, surveillance of Hinson and Fulmore, and the failure to
dispel “black book” rumors; (5) allegations of intimidation by
Wray and Brady against several officers, white and black alike;
31
and (6) improper use of SID and failure to follow procedures.
(See Doc. 282–8.)
During
the
City
legal
department’s
investigation
in
the
fall of 2005, Johnson came to believe that the investigation
should be broadened to address Wray’s management practices and
would need to be conducted by an outside party rather than by
the
City
attorney.
Thus,
Johnson
retained
Associates to conduct a separate investigation.
11.)
Risk
with
Management
extensive
Associates
experience
management, and training.
employs
in
law
(Id.)
Risk
Management
(Doc. 282-8 at
private
enforcement
consultants
services,
Like the City Legal Report,
the RMA Report (Doc. 282–7) was intended to provide a response
to complaints made to Johnson about Wray’s style of leadership,
including claims of racial tension in the GPD (Doc. 282–3 at
43).
During the investigation, however, it became apparent
that
the
report
would
have
to
be
more
narrowly
tailored
to
address the veracity of Chief Wray’s discussions with Johnson
about
the
investigation
of
GPD
officer
Hinson
and
other
The RMA Report was completed on December 19, 2005.
This
personnel decisions.
court
summarized
the
report
in
Wray’s
subsequent
race
discrimination case challenging his allegedly forced resignation
from the GPD, Wray v. City of Greensboro, No. 1:09–CV–00095,
2013 WL 4494460 (M.D.N.C Aug. 19, 2013), as follows:
32
The RMA Report concluded that “there is 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.
This caused [City Manager]
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.
Id. at *3 (citations to the record omitted).
At least in part
based on the findings of the RMA Report, Johnson decided to
place Wray on administrative leave in early January 2006.
282–3 at 62–63.)
Following
immediately
Wray resigned a few days later.
the
following
City
Legal
Wray’s
and
RMA
resignation,
(Doc.
(Id.)
investigations
Johnson
and
issued
a
public statement on behalf of the City in which he admitted that
(1) Wray had been dishonest with his superiors with respect to
the ongoing investigation of James Hinson; (2) a “black book”
containing the pictures of 19 black officers had been concealed
and Wray’s superiors were not informed of its purpose as an
investigatory tool for the sexual assault investigation, which
led
to
the
proliferation
of
inaccurate
information;
and
(3)
SID’s “continued pursuit of unproven, previously investigated,
and unsubstantiated charges against certain African[-]American
officers created an atmosphere of fear, distrust, and suspicion,
which undermined the department's morale and efficiency.”
33
(Doc.
282–10 at 4-5.)
Plaintiffs rely on these statements essentially
as admissions that a hostile work environment existed at the
GPD.
2.
Breach of contract and tortious interference
clams
Following all of these incidents, many of the plaintiffs,
including Cherry and Pryor, filed charges of discrimination with
the
Equal
Thereafter,
“proposed
Opportunity
on
February
conciliation
Employment
13,
2008,
agreement”
the
Commission
EEOC
sent
indicating,
(“EEOC”).
the
City
among
a
other
things, that the EEOC was encouraging the parties to engage in
conciliation.
(including
(Doc. 180–2.)
Cherry),
On March 4, some EEOC claimants
representatives
counsel met to mediate the charges.
of
the
City,
and
(Doc. 180–3 at 3.)
their
On that
date, an agreement was entered into (the “Stipulation”) that
provided, in relevant part:
In discussing possible settlement, certain personnel
matters that are confidential by law may need to be
discussed.
In
an
effort
to
have
a
meaningful
settlement
discussion
without
concern
that
confidential matters not be discussed outside the
context of the settlement meeting, counsel for the
parties have agreed to keep all discussions kept [sic]
confidential.
IT IS HEREBY STIPULATED AND AGREED by and between the
parties to this stipulation, through their undersigned
counsel, that:
1. This stipulation shall govern any statement
information by any party, to any other party
connection with the mediation of this action.
34
or
in
2. No person who receives any statement or information
during the mediation shall disclose it to any nonparty for any purpose.
(Doc. 180–5.)
on
August
Council”)
Although no settlement was reached on that date,
19,
2008,
voted
to
the
Greensboro
City
offer
plaintiffs
a
settle their claims. 37
Council
total
of
(the
“City
$750,000
to
(Doc. 210–2 at 20–21; Doc. 180–18 at 3.)
Wade, as a councilmember, expressed frustration that the City
Council
was
not
told
the
plaintiffs’
whether to offer the settlement.
names
before
(Doc. 210–2 at 23.)
deciding
She also
felt that the City Council lacked sufficient information about
the facts on which the claims were based to make a decision
whether to settle and that ultimately whether the plaintiffs
should be awarded any money was a determination best left to the
courts.
(Id. at 52.)
After the settlement offer, Wade called City Clerk Betsy
Richardson to make a public records request for all contracts
signed by the City Manager in the previous two years.
5.)
(Id. at
According to Wade and Johnson, the request sought “[a]ll
outstanding
consulting
and
service
contracts
except
for
construction and demolition contracts; all completed consulting
37
The offer had certain conditions attached to it.
Plaintiffs
rejected it with an August 22 counteroffer, which the City rejected
September 4, 2008.
(Doc. 210-14 ¶¶ 27-29.)
The City authorized
another version of an offer with a $750,000 payment on October 21,
which was communicated to plaintiffs November 3. (Id. ¶¶ 31, 32.)
35
and
service
RFP's
for
contracts
consulting
since
and
July
1,
service
2007;
[and]
contracts.”
all
(Id.
current
at
8.)
Johnson became aware of the request on October 31, 2008, after
receiving
an
e-mail
from
Richardson.
(Doc.
210–7
at
3.)
Because the documents Wade requested were contracts with the
City, Johnson had no concerns that the documents were anything
other than public records, available to any citizen.
(Doc. 210–
3 at 23.)
The City produced the documents for Wade in tranches, with
the entire production lasting about a month.
Because
of
the
sheer
number
of
documents
(Doc. 210–2 at 6.)
encompassed
by
her
request, Wade enlisted the help of her political consultant,
William Burkley, to sort through them.
(Doc. 185 at 15–16.)
Within them, Burkley discovered a document entitled “Equitable
Sharing Agreement and Certification” (the “Sharing Agreement”)
(Doc.
210–4),
which
identifies
thirty-nine
of
the
Alexander
plaintiffs by name, including Cherry and Pryor, as having filed
an EEOC charge of discrimination against the City.
Upon discovering the document, Burkley immediately called
John Hammer, publisher of the Rhinoceros Times (“Rhino Times”),
a free local weekly newspaper in circulation in Greensboro that
had printed stories about the alleged ongoing GPD racial issues.
(Doc.
210–2
Hammer’s
at
10.)
residence,
Wade
where
and
Burkley
Burkley
36
got
immediately
out
of
the
drove
car
to
and
excitedly
waved
the
Sharing
Agreement
at
Hammer,
saying
something to the effect of, “you're not going to believe what I
have . . . this is the list here and it's public information,
and you're not going to believe this, that's the police officers
. . . .”
(Id. at 11.)
Up to this point, Wade had not seen the
document and directed Burkley to get back in the car.
(Id. at
12.)
Sharing
Burkley
told
Hammer
that
if
he
wanted
the
Agreement, he could make a public records request to the City on
his own.
(Id. at 12)
Wade explained:
I didn't want to give it to Mr. Hammer. He could ask
himself for the same public information I had.
I
didn't want to influence the story in the Rhino Times
with Trudy Wade gives public information to John
Hammer. If he wants it, he can get it the same way I
got the public information or anybody else could.
(Id. at 13.)
Hammer
later
e-mailed
Richardson
and
requested
the
same
documents that had been delivered to Wade, using language that
closely tracked Wade’s previous request.
Hammer
forwarded
Schreiber.
his
According
e-mail
to
to
(Doc. 210–9 at 2–3.)
Assistant
Schreiber,
Wade
City
Clerk
requested
Diana
that
she
fulfill Hammer’s request by simply copying the documents given
to Wade.
(Doc. 210–6 at 4, 6.)
Schreiber met Wade in the City
Council’s underground parking lot, where Wade gave her a stack
of documents to copy for Hammer.
(Id. at 6–7.)
Schreiber then
accompanied Wade to the Mayor’s office, where Schreiber worked,
37
and began making the copies.
the copies were for Hammer.
Schreiber
copied
the
(Id. at 8.)
Wade made clear that
(Id. at 10.)
documents
in
about
an
hour,
went
downstairs where Hammer was waiting, gave him his copies, and
returned the originals to Wade.
(Id. at 14-15.)
According to
Schreiber, Wade appeared upset that she could not initially find
something in the stack of documents returned to her but became
satisfied when she eventually found it.
(Id. at 15–16.)
Wade
asked Schreiber to return to her car to get more documents, but
Schreiber refused because she did not have time. 38
After Johnson learned that the names of the plaintiffs,
including
Cherry
and
Pryor,
had
been
produced
to
Wade
and
Hammer, he instructed the City Clerk’s office to bring him all
the documents that had been produced to Hammer.
7.)
(Doc. 210–3 at
In this search, Johnson discovered the Sharing Agreement
and its accompanying list of names.
(Id.)
He testified that
the “release of that document . . . was a mistake on the part of
staff because we had no idea that that information was in the
documents.”
(Id.)
According to Johnson, the mistake was made
because he and the clerk had assumed that any document provided
by the City’s department heads was a matter of public record.
38
Although Wade disputes this part of this conversation, especially
that she expressed disappointment she could not find a specific
document (Doc. 210–2 at 59), the court accepts it for purposes of the
present motions.
38
(Id. at 8.)
For her part, Schreiber also admitted that the
Sharing Agreement should not have been given to Wade in the
first place.
(Doc. 210–6 at 20.)
On November 13, 2008, Hammer published an article in the
Rhino
Times
Revealed.”
the
entitled
“Names
(Doc. 210–11.)
thirty-nine
Too
Secret
for
City
Council
The article includes the names of
plaintiffs
subject
to
the
Sharing
Agreement,
including Cherry and Pryor, and the $750,000 settlement offer.
(Id.
at
2–4.)
Hammer
also
expressed
his
opinion
that
the
members of the City Council who had supported a settlement offer
to
the
plaintiffs
irresponsibly.
before
knowing
(Id. at 2.)
their
identities
had
acted
According to Johnson, the article
created a public outcry about the settlement at the next City
Council meeting.
Cherry
and
(Doc. 210–3 at 12.) 39
Pryor
contend
that
the
settlement
offer
was
revoked five days later during a closed session of the City
Council on November 18, 2008.
(Doc. 210 at 16.)
Wade and
Johnson have refused to disclose the results of any vote or
discussions at that meeting on the grounds of privilege. 40
210–2 at 53–55; Doc. 210–3 at 25–27.)
(Doc.
Cherry and Pryor have
39
The City and Wade strongly contest this point, but a reasonable jury
could credit Johnson’s testimony that there was a public outcry about
the settlement.
40
The invocation of privilege does not appear to have been challenged
by any plaintiff in this action.
39
both
filed
affidavits
stating
that
they
would
have
accepted
their share of the $750,000 settlement had the offer not been
rescinded.
II.
(Doc. 210–12 at 15–16, 53–54.) 41
ANALYSIS
A.
Motion to Strike Cherry and Pryor’s Pro Se Brief
As noted above, Cherry and Pryor discharged their counsel
on September 4 and 5, 2013, essentially contemporaneously with
the
due
date
of
their
response
brief.
Not
clear
of
their
obligation insofar as the court had not discharged them and no
new
counsel
had
been
retained,
counsel
for
Cherry
and
Pryor
timely filed a brief on the clients’ behalf; however, Cherry and
Pryor also filed their own pro se brief detailing their hostile
work environment claims against the City and the GPD Defendants.
(Doc. 131 in case 1:09CV934.)
wholly
devoid
of
any
citation
The 68-page pro se brief is
to
the
record,
with
just
two
citations to any legal authority, and violates a number of the
local rules of this district.
See, e.g., L.R. 7.2(a)(2) (“Each
statement of fact should be supported by reference to a part of
the
official
record
in
the
case.”);
response briefs to 20 pages).
L.R.
7.3(d)
(limiting
It also violates this court’s
41
The City notes that original plaintiff Rankin originally testified
at his deposition that Cherry and Pryor were not prepared to accept
the $750,000 offer at the time.
(Doc. 180 at 6.)
However, Rankin
recanted this testimony later in his deposition.
(Doc. 180–18 at 5–
6.)
40
briefing Order.
For these reasons, the City moved to strike it.
(Doc. 191 in case 1:09CV934.)
The
pro
se
brief
indeed
rests
on
a
precarious
footing.
Yet, these claims have been pending for almost five years, and
the court has a strong interest in resolving them rather than
delay their resolution further because of the missteps of Cherry
and Pryor.
all
The court has therefore considered the contents of
materials
filed
by
or
on
behalf
of
Cherry
and
Pryor.
Because the court finds, for the reasons that follow, that the
pro
se
brief
fails
to
support
a
claim
that
a
hostile
work
environment existed for these two plaintiffs at the GPD during
the relevant time period, the City’s motion to strike will be
denied as moot.
B.
GPD Defendants’ Motion to Strike Appendices
The
GPD
Defendants
also
move
to
strike
the
appendices
submitted on behalf of the other thirty-eight plaintiffs on the
grounds that they violate this court’s prior Order on briefing
limits and rely on inadmissible hearsay evidence.
The
appendices
regurgitate
and
are
(Doc. 261.)
duplicative
of
those
plaintiffs’ interrogatory responses, which are attached to their
motion for summary judgment as Exhibit A.
(Docs. 282–1, 282–2.)
The interrogatory responses are admissible evidence (to the
extent
they
are
based
on
the
personal
knowledge
of
the
declarant), and therefore the court need not determine whether
41
the same material may be considered in the form of appendices to
the
original
plaintiffs’
response
brief.
The
motion
will
therefore be denied as moot.
Of course, to the extent any
interrogatory
inadmissible
response
contains
hearsay,
it
will
simply be disregarded rather than struck.
C.
Motions for Summary Judgment
1.
Standard of review
“The court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Civ.
P.
56(a).
The
moving
party
bears
the
Fed. R.
burden
of
establishing that no genuine dispute of material fact remains.
When the non-moving party has the burden of proof, the moving
party is entitled to summary judgment if it shows the absence of
material disputed facts.
317, 322-23, 325 (1986).
Celotex Corp. v. Catrett, 477 U.S.
“As the Supreme Court has made clear,
‘courts should [not] treat discrimination differently from other
ultimate questions of fact.’”
Merritt v. Old Dominion Freight
Line, Inc., 601 F.3d 289, 294-95 (4th Cir. 2010) (quoting U.S.
Postal
Serv.
(1983)).
Bd.
of
Governors
v.
Aikens,
460
U.S.
711,
716
In assessing whether a genuine dispute of material
fact sufficient to preclude summary judgment exists, the court
regards
the
non-movants’
statements
as
true
and
accepts
all
admissible evidence and draws all inferences in the non-movants’
42
favor.
Anderson
(1986).
“mere
existence
not
Liberty
Lobby,
Inc.,
477
U.S.
242,
255
But a non-moving party must establish more than the
position.
is
v.
of
a
Id. at 252.
significantly
granted.”
Id.
at
scintilla
of
evidence”
to
support
his
If the evidence is “merely colorable, or
probative,
249-50.
summary
Ultimately,
judgment
summary
may
judgment
be
is
appropriate where the non-movant fails to offer “evidence on
which the jury could reasonably find for the plaintiff.”
Id. at
252.
2.
Hostile work environment claims
a.
Elements of hostile work environment claim
In order to survive summary judgment on their hostile work
environment
sufficient
claims,
conduct
for
was
sufficiently
employment
a
and
reasonable
“(1)
severe
and
Cherry
unwelcome;
or
create
Pryor
jury
to
(2)
produce
find
that
based
pervasive
an
must
to
abusive
on
alter
evidence
defendants’
race;
and
(3)
the
conditions
of
atmosphere.”
Spriggs
v.
Diamond Auto Glass, 242 F.3d 179, 183 (4th Cir. 2001).
The
elements are the same whether the cause of action arises under
Title VII or section 1981.
Id. at 184.
Defendants argue that Cherry and Pryor cannot show that the
alleged
actions
pervasive.”
were
either
based
on
race
or
“severe
or
To show that the alleged hostile work environment
was based on their race, Cherry and Pryor must produce evidence
43
sufficient for a reasonable jury to find that, but for their
race,
they
would
discrimination.
326,
334
(4th
sufficiently
environment
not
have
been
the
victim
of
the
alleged
Mosby-Grant v. City of Hagerstown, 630 F.3d
Cir.
“severe
claim
2010).
or
Whether
pervasive”
depends
on
the
to
several
alleged
create
a
factors,
conduct
was
hostile
work
including
“the
frequency of the discriminatory conduct; its severity; whether
it is physically threatening or humiliating, or a mere offensive
utterance;
and
whether
it
unreasonably
employee's work performance.”
interferes
with
an
Harris v. Forklift Sys., Inc.,
510 U.S. 17, 23 (1993); see also Williams v. Aluminum Co. of
Am., 457 F. Supp. 2d 596, 608 (M.D.N.C. 2006).
To be actionable, the harassment must be both subjectively
and
objectively
hostile.
Harris,
510
U.S.
at
21–22.
An
objectively hostile work environment is one “that a reasonable
person would find hostile or abusive.”
Id. at 21.
“Whether the
harassment is objectively severe or pervasive is judged from the
perspective of a reasonable person in the plaintiff's position.”
Williams, 457 F. Supp. 2d at 608 (citing Oncale v. Sundowner
Offshore Servs., Inc., 523 U.S. 75, 81 (1998)).
As this court
noted in Alexander 293, because this case was not brought as a
class action, each plaintiff is required to show that he is
entitled to relief.
Pryor
each
must
762 F. Supp. 2d at 791.
produce
sufficient
44
Thus, Cherry and
evidence
upon
which
a
reasonable jury could find all the elements of a hostile work
environment as to him.
b.
Neither
Evidentiary deficiencies
Cherry
nor
Pryor
has
produced
any
evidence in their jointly filed pro se brief.
admissible
None of their
arguments contains any citation to the record in either case,
and many rely on hearsay as the sole support.
For example,
there are several arguments in the brief that rely on alleged
statements or actions of Assistant Chief Bellamy.
reviewed
the
submitted
by
entirety
the
of
Alexander
Bellamy’s
The court has
deposition
plaintiffs
and,
transcript
apart
from
his
testimony about being excluded from certain meetings, found no
support for them.
Even where Bellamy’s testimony appears to be
helpful to Cherry and Pryor, it relies on inadmissible hearsay.
For
example,
Bellamy
testified
that
a
number
of
reliable
confidential informants stated that some white GPD officers were
going
around
Greensboro
and
showing
photographs
officers to those informants and to others.
22.)
of
black
(Doc. 282–16 at 21–
Bellamy viewed these informants as reliable enough to use
for seeking a search warrant from a magistrate, yet he refused
to divulge their names.
(Id. at 19-20.)
Needless to say, the
record contains no statements from them; these declarants have
not been deposed, nor has their testimony been made available in
any
admissible
form.
Bellamy’s
45
reports
of
their
alleged
statements therefore consist of inadmissible hearsay, see Fed.
R. Evid. 801(c), 802, and the court will not consider them when
ruling
on
the
motion
for
summary
judgment.
See
Greensboro
Prof’l Firefighters Ass’n, Local 3157 v. City of Greensboro, 64
F.3d 962, 967 (4th Cir. 1995).
c.
Plaintiffs’
Black book allegations
reliance
on
the
various
line-up
books
–
an
original focus of this case - to establish their hostile work
environment claim fails.
As an initial matter, the Alexander plaintiffs and the pro
se brief essentially argue that to the extent the City and GPD
Defendants
admit
to
showing
photographs
of
certain
black
officers to anyone, the line-ups were improperly conducted in a
racially-motivated way.
In the absence of evidence of bad faith
or improper motivation, however, courts should avoid engaging in
post hoc examination of internal police investigations.
See,
e.g., Dintino v. Echols, 243 F. Supp. 2d 255, 265–66 (E.D. Pa.
2003) (noting in context of constitutional claim under 42 U.S.C.
§ 1983, that “[a]bsent evidence of wrongdoing or bad faith, of
which the plaintiff presents none, it is not the province of the
court
to
second-guess
the
investigatory
techniques
used
and
decisions made by law enforcement officials”); Smith v. Reddy,
882 F. Supp. 497, 502 (D. Md. 1995) (noting in section 1983
action
that
the
court’s
role
is
46
“not
to
second-guess
police
work”); United States v. Gravina, 906 F. Supp. 50, 54 (D. Mass.
1995) (noting in context of application of exclusionary rule in
supervised
release
revocation
hearing,
“absent
any
evidence
whatsoever of improper police motivation or conduct, this Court
will not second-guess the manner in which the police performed
their functions”).
Neither Cherry nor Pryor has produced any
admissible evidence that any lineup book was used for any reason
other
than
the
City’s
proffered
investigatory
purposes. 42
Plaintiffs’ hostile work environment claims gain no purchase on
unsupported assertions that different lineups should have been
shown
in
certain
situations,
such
as
the
sexual
assault
investigation.
More importantly, Cherry and Pryor admit, in both their
depositions
and
their
pro
se
brief,
that
they
had
no
contemporaneous knowledge of any photographs in any of the socalled “black books” being shown to anyone.
case
1:09CV934
(Cherry
Dep.)
at
23–30;
1:09CV934 (Pryor Dep.) at 29–30.)
(Doc. 112–1
Doc.
114–6
in
in
case
In fact, in their pro se
brief Cherry and Pryor assert that they became aware of the
lineup
books
after
the
August
2005
42
meeting
that
three
other
Even evidence of an alleged lineup book discovered by Fulmore is
based on inadmissible hearsay. Fulmore testified in his deposition in
case 1:09CV373 that Officer Danny Combs told him about the photographs
that Sanders was gathering in his office.
(See Doc. 89–1 in case
1:09CV373 at 102.)
No testimony of Officer Combs has been presented
in these cases.
47
Alexander plaintiffs had with then-Deputy City Manager Johnson,
which was well after the investigations were concluded and the
City had begun investigating the various discrimination claims.
(Doc. 131 in case 1:09CV934 at 21.)
does
not
yet
appear
to
have
Although the Fourth Circuit
addressed
the
subject,
other
circuits have held that because discriminatory conduct must be
subjectively (as well as objectively) hostile, “[a] Title VII
plaintiff ‘may only rely on evidence relating to harassment of
which []he was aware during the time that []he was allegedly
subject to a hostile work environment.’”
Cottrill v. MFA, Inc.,
443 F.3d 629, 636 (8th Cir. 2006) (quoting Hirase-Doi v. U.S.
West Commc’ns, Inc., 61 F.3d 777, 782 (10th Cir. 1995)); accord
Pryor v. Seyfarth, Shaw, Fairweather & Geraldson, 212 F.3d 976,
978
(7th
Cir.
2000)
(finding
that
“[i]nsofar
as
Woodford
harassed other employees, and did so without (so far as appears)
Pryor's knowledge, it could not have altered her conditions of
employment, and so she could not complain about that harassment
under Title VII”); Burnett v. Tyco Corp., 203 F.3d 980, 981 (6th
Cir.
2000)
(finding
allegations
of
misconduct
insufficient
because “there is no evidence that plaintiff was aware of these
actions at the time”).
Plaintiffs cannot rely solely on rumors and inadmissible
hearsay to create a genuine issue of material fact where, at
least
on
this
record,
those
rumors
48
were
perpetuated
by
the
Alexander plaintiffs themselves.
Neither the pro se brief nor
the original plaintiffs’ response brief cites any authority, and
the court can locate none, for the proposition that plaintiffs
may
create
a
hostile
amongst themselves.
work
environment
by
propagating
rumors
Yet this is precisely what Cherry and Pryor
request that the court allow them to do.
For these reasons, the record evidence fails to support a
hostile work environment claim regarding the so-called “black
books.”
d.
Investigations of black officers and other
alleged irregularities
Cherry and Pryor also rely on various GPD investigations of
themselves, the other Alexander plaintiffs, James Hinson, and
Fulmore
to
support
their
hostile
work
environment
claims.
Unlike the black book claims, record, non-hearsay evidence does
exist regarding investigations of black GPD officers.
To be sure, the court has previously found that the amended
complaint’s allegations of investigations as to Cherry and Pryor
failed to state a separate claim for disparate treatment as to
them.
Pryor himself complains of just two incidents.
One of
these (the Harris Teeter arrest incident) was already considered
by the court in Alexander 293 as a disparate treatment and/or
disparate
discipline
insufficiency.
See
762
claim
F.
and
Supp.
49
2d
dismissed
at
800-01.
for
The
legal
other
incident involved Pryor being called a “token black” by a squad
member and his immediate superior failing to investigate the
comment.
On
sufficiently
their
severe
environment claim.
own,
or
these
pervasive
incidents
to
sustain
would
a
not
hostile
be
work
See, e.g., Morales-Cruz v. Univ. of P.R.,
676 F.3d 220, 226 (1st Cir. 2012) (“stray remarks,” even if they
may be offensive, cannot constitute a hostile work environment
claim).
Cherry’s incidents, which are admittedly more numerous than
Pryor’s, still amount to nothing more than isolated disparate
treatment claims and technical complaints about the adequacy of
GPD
internal
investigations.
For
instance,
Cherry’s
claims
regarding the child abuse investigation invite this court to
parse the technicalities of a plainly legitimate investigation
into a serious allegation made by Cherry’s daughter, which her
mother reported.
The claim arising out of the confrontation
between Cherry and Ingold does not appear to amount to any sort
of
claim,
as
Cherry’s
only
argument
is
that
Wray
failed
to
follow GPD directives after an incident in which both parties
apologized.
Such an incident could not form the basis of any
claim under Title VII or section 1981, because these statutes do
not
create
a
general
workplace
civility
code,
and
not
every
insult or slight is actionable under the discrimination laws.
See Jennings v. Univ. of N.C., 482 F.3d 686, 696 (4th Cir. 2007)
50
(citing
Oncale,
523
U.S.
at
80).
Like
Pryor’s,
Cherry’s
complaints about individual disparate treatment are insufficient
to support a claim of hostile work environment.
Moreover, there
is no evidence that Cherry and Pryor were aware of each other’s
incidents.
Both
uttered
Cherry
against
and
them
Pryor
or
state
other
that
certain
officers.
epithets
However,
only
were
one
epithet was used in Pryor’s presence over the span of years.
Pryor
acknowledged
requiring
response
the
was
that
offending
not
to
the
GPD
officer
Pryor’s
addressed
to
the
apologize,
satisfaction.
incident
although
Cherry
was
by
the
once
called a “jerk” by a white captain, and Cherry states that white
commanders called minority officers “terms like ‘sorry sack of
s***’.”
Neither plaintiff charges a steady stream of racial
slurs, making it nearly impossible to perform one’s job.
See,
e.g., EEOC v. Central Wholesalers, Inc., 573 F.3d 167, 176–77
(4th Cir. 2009) (black plaintiff produced sufficient evidence
for hostile work environment claim where co-workers used the
epithet “n****r” on a daily basis and displayed mop-head dolls
hanging by nooses in the office); EEOC v. Sunbelt Rentals, Inc.,
521 F.3d 306, 315–19 (4th Cir. 2008) (sufficient evidence for
hostile work environment claim where the plaintiff was subjected
to constant comments disparaging the Muslim faith, questioning
his allegiance to the United States, and insinuating that he was
51
a
terrorist);
“n****r”
and
Spriggs,
242
“monkey,”
F.3d
even
at
184–85
though
not
(epithets
directed
such
at
as
the
plaintiff, were sufficient to support a hostile work environment
claim when said in his presence); cf. Greene v. Swain Cnty.
P’ship for Health, 342 F. Supp. 2d 442, 455 (W.D.N.C. 2004)
(defendant granted summary judgment on hostile work environment
claim where plaintiff’s evidence consisted of being called the
“Token Indian” and subjected to a few derogatory comments about
her black hair and high cheekbones).
The record is also devoid
of the use of any threats of violence or physical intimidation.
See, e.g., White v. BFI Waste Servs., LLC, 375 F.3d 288, 298–99
n.6
(4th
Cir.
2004)
(“The
presence
of
race-based
physical
threats undeniably strengthens a hostile work environment claim.
The absence of such, however, is in no way dispositive, when
there is sufficient evidence from which a reasonable jury could
conclude
that
humiliating.”
allegedly
(internal
harassing
quotation
conduct
marks
was
omitted));
otherwise
Dowd
v.
United Steelworkers of Am., Local No. 286, 253 F.3d 1093, 1101–
02
(8th
Cir.
2001)
(plaintiffs
could
establish
hostile
work
environment claim against union where union members subjected
them to threats of violence each time they drove into the steel
plant, including throwing tacks in the path of the plaintiffs’
cars and spitting on their car windows); EEOC v. T-N-T Carports,
Inc., No. 1:09–CV–27, 2011 WL 1769352, at *4–5 (M.D.N.C. May 9,
52
2011)
(plaintiff
could
establish
a
hostile
work
environment
where, among several incidents that could have humiliated her,
one involved a threat of physical violence and caused her and a
co-worker to cry).
In an attempt to overcome these deficiencies, plaintiffs
seek to aggregate the various investigations of GPD officers to
support a hostile work environment claim for themselves.
This
effort to fashion a hostile work environment claim out of a
collection of alleged disparate treatment claims will not pass
muster
unless
the
facts
support
the
hostile work environment claim.
separate
criteria
for
a
See Rattigan v. Gonzales, 503
F. Supp. 2d 56, 82 (D.D.C. 2007) (“[C]obbling together a number
of
distinct,
environment.
disparate
acts
will
not
create
a
hostile
work
For example, if an employee is discriminatorily
denied ten promotions over a period of time, that pattern of
conduct may give rise to ten separate claims under Title VII,
but it would not create a hostile work environment claim based
on
pervasive
intimidation,
insult
and
ridicule.”);
see
also
Bailey v. Int’l Paper, Civ. A. No. 2:11–03013, 2012 WL 405713,
at
*3
(D.S.C.
transform
her
Feb.
8,
2012)
separate
(finding
and
distinct
that
“Plaintiff
claim
for
cannot
disparate
treatment based on gender into a hostile work environment claim,
unless
the
facts
alleged
meet
the
separate
criteria
for
a
hostile work environment claim”); Parker v. State of Del., Dep’t
53
of Pub. Safety, 11 F. Supp. 2d 467, 475 (D. Del. 1998) (“[T]he
dangers of allowing standard disparate treatment claims to be
converted into a contemporaneous hostile work environment claim
are
apparent.
Such
an
action
would
significantly
blur
the
distinctions between both the elements that underpin each cause
of
action
and
the
kinds
of
harm
each
cause
of
action
was
designed to address.”).
Cherry and Pryor also seek to boost their claims by arguing
that
the
investigations
into
the
conduct
of
other
officers
created an atmosphere of fear for black officers at the GPD.
Under the totality of the circumstances, the court can consider
conduct targeted toward others.
Hayes v. Lowe’s Food Stores,
Inc., No. 1:04CV00178, 2005 WL 1258932, at *6 (M.D.N.C. May 26,
2005) (citing Brown v. Hous. Auth. of Calvert Cnty., 150 F.
Supp. 2d 856, 863 (D. Md. 2001)).
hand
harassment
claims
carry
But admittedly, such secondless
weight
than
harassment
directed at the plaintiffs personally and must have actually
contributed
to
they suffered.
the
Id.
hostile
work
environment
plaintiffs
claim
Ultimately, the question remains whether
Cherry and Pryor have stated sufficient facts to support the
elements of a hostile work environment claim for themselves, as
noted earlier.
After a careful review of the record, the court concludes
that Cherry and Pryor have failed to produce admissible evidence
54
from which a reasonable jury could find that the conduct of the
City and the GPD Defendants was sufficiently severe or pervasive
to
alter
the
atmosphere
for
conditions
them.
of
employment
There
are
and
several
create
an
reasons
abusive
for
this
conclusion.
Principally, Cherry and Pryor have failed to demonstrate
that, with the exception of Hinson’s investigation, they were
aware of the various investigations of other officers before
they were exposed by the City’s independent investigations.
As
noted earlier, it is a fundamental precept of a hostile work
environment claim that the complainant be aware of the conduct
alleged to have caused the severe or pervasive racial hostility.
See, e.g., Cottrill, 443 F.3d at 636.
In the case of Hinson’s
investigation, even Pryor initially believed it was “probably
for
just
cause,”
standard.
In
thus
failing
the
subjective
element
of
the
(Doc. 282-2 at 9.)
addition,
the
various
incidents
of
alleged
disparate
treatment, considered individually and in their totality, simply
fail to rise to the level of severe or pervasive conduct based
on race.
In most, if not all, cases, plaintiffs have failed to
provide
evidence
investigations
purpose.
to
themselves
support
were
the
without
inference
any
that
legitimate
such
police
The fact that an investigation terminated in favor of
55
an officer is insufficient evidence it was instituted without
basis.
The
investigation
that
comes
closest
to
evidencing
an
abusive purpose is Hinson’s, because Wray reopened it in 2005
after it had been resolved in August 2004.
Yet, the claim at
issue is for a hostile work environment, and even Hinson was
unaware that he was under renewed investigation until June 4,
2005, when he discovered the tracking device on his vehicle.
From all appearances, the GPD tried to keep the investigation
secret, and only because Hinson went to the newspapers did it
become public.
issued
a
Hinson
in
After the incident became publicly known, Wray
public
a
statement
broader
on
June
investigation
17,
2005,
that,
in
that
the
implicated
light
most
favorable to plaintiffs, was later revealed to be trumped up and
lacked any reasonable basis.
As improper as Wray’s conduct as
to Hinson appears to have been, 47 this incident does not provide
evidence of a hostile work environment for Cherry and Pryor.
Further,
plaintiffs’
contentions
that
Sanders
operated
outside the chain of command and that SID acted improperly when
it, as opposed to another division, investigated black officers
invite this court to involve itself in the inner workings of the
47
For example, Wray allegedly linked Hinson to a federal drug
investigation that involved “bodies in refrigerators.” (Doc. 282-7 at
8.)
56
GPD.
The court declines to do so absent evidence that the
investigations were without any legal basis, which, with the
exception of the continued investigations of Hinson and Fulmore,
does not appear on this record. 48
The inherent nature of police
work gives rise to internal investigations in appropriate cases.
Indeed, even Cherry and James Bowman, a North Carolina SBI agent
upon whom plaintiffs rely, acknowledge that while in many cases
such
allegations
are
unfounded,
it
is
incumbent
upon
police
investigators in certain cases to consider and, in appropriate
cases, pursue reports of impropriety involving their officers
made by suspects, family members, and others.
(Doc. 112-1 in
case 1:09CV934 at 44; Doc. 282-21 ¶ 6 (noting that “in most
cases an investigation of such allegations is necessary”).)
court
cannot
generally,
evidence
and
would
investigations
say
that
in
on
this
record
permit
cited
a
were
the
environment
in
particular,
reasonable
abusive
jury
based
to
on
of
police
the
find
race
The
work
admissible
that
so
as
the
to
constitute severe or pervasive harassment for Cherry and Pryor. 49
48
In any event, it does not appear that either Cherry or Pryor was
investigated by SID, as Cherry’s child abuse investigation was
conducted by CID.
49
The investigation of Fulmore, cited by plaintiffs as one of the more
egregious, demonstrates this point.
The inculpatory evidence - drug
paraphernalia and a used condom - found in a hotel room registered in
Fulmore’s name was discovered during a routine hotel interdiction.
The room next door was rented to a known prostitute and drug user, who
implicated Fulmore in criminal conduct.
Fulmore admitted to use of
57
Similarly,
plaintiffs’
evidence
that
high-ranking
black
officers such as Bellamy were excluded from secret meetings with
Wray fails to show any altering of Cherry’s or Pryor’s working
conditions.
See Allen v. Napolitano, 774 F. Supp. 2d 186, 206
(D.D.C. 2011) (finding claims of exclusion from meetings not
sufficiently severe or pervasive to rise to the level necessary
to support hostile work environment claim); Pletz v. Hayden,
Civ. A. No. 08–0539, 2009 WL 274505, at *6 (E.D. Va. Feb. 4,
2009) (finding belittling plaintiff's job performance, removing
her overtime, moving her to various positions over several years
while male counterparts were allowed to “homestead” in their
positions,
making
correspondence
from
and
plaintiff,
snide
meetings,
and
remarks,
excluding
supervisor’s
supervisor’s
her
distancing
stating
from
himself
mis-truths
and
contradictions regarding plaintiff’s performance insufficient to
make out hostile work environment claim).
Similarly, assuming
all of plaintiffs’ evidence to be true, the technicalities of
the chain of command and the existence of Wray’s “inner circle”
the condom.
Once the prostitute was located, the GPD disagreed with
the SBI on her credibility.
Ultimately, Fulmore was cleared of any
criminal charges, but only after DNA was sent off for examination, yet
he was found to have violated GPD policy in connection with the whole
incident. The real criticism of the GPD investigation relates not to
the merits but mostly to the fact it took over six months to be
resolved.
The need for obtaining DNA test results appears to have
contributed to this delay.
(Doc. 282-8 at 9-11.)
Even the SBI
acknowledged that the initial Fulmore investigation was necessary.
(Doc. 282-21 ¶ 6.)
58
have not been shown to have had any effect on Cherry and Pryor’s
work environment.
In sum, the record, viewed in its totality and in the light
most favorable to plaintiffs, paints a sordid picture of Wray’s
use of intimidation and a heavy hand to administer the GPD.
Undoubtedly, as the RMA Report and City Legal Report detail,
there is evidence that some of his tactics and the appearances
created by them were, at least, racially insensitive.
cases,
there
is
evidence
that
he
may
have
In some
been
racially
motivated as to the nature and extent of an investigation (e.g.,
Hinson).
However, while the plaintiffs rely on the onslaught of
evidence of the various misdeeds of Wray’s administration as a
general
indictment,
the
limited
issue
before
the
court
is
whether the City and GPD Defendants created a racially hostile
work environment for Cherry and Pryor.
As the Fourth Circuit
has cautioned, “plaintiffs must clear a high bar in order to
satisfy the severe or pervasive test.”
Central Wholesalers, 573
F.3d at 176 (quoting Sunbelt, 521 F.3d at 315).
The court
concludes that the proffered evidence of inadmissible hearsay
and
rumors
spread
investigations
of
amongst
other
the
officers,
plaintiffs
disparate
and
aggregated
treatment
claims,
and internal investigation tactics fails as a matter of law to
create a hostile work environment claim as to Cherry and Pryor.
59
Consequently,
the
City
and
the
GPD
Defendants’
motions
for
summary judgment on these claims will be granted.
3.
Tortious interference claims against Wade
In order to maintain an action for tortious interference
with prospective economic advantage, Cherry and Pryor must show
that
Wade
induced
the
City
to
refrain
from
contract with them without justification.
entering
into
a
DaimlerChrysler Corp.
v. Kirkhart, 148 N.C. App. 572, 585, 561 S.E.2d 276, 286 (2002).
In Alexander 293, this court declined to dismiss plaintiffs’
tortious interference claim for the following reason:
Construing all allegations and reasonable inferences
derived therefrom in the light most favorable to
Plaintiffs, the Amended Complaint alleges that the
City
submitted
a
written
settlement
offer
to
Plaintiffs, that Wade's disclosures and the subsequent
publication of the information she provided led
directly to protests by Greensboro citizens against
the prospective settlement, that these protests led
directly to the City Council's decision to withdraw
the offer, that Plaintiffs were considering the City's
offer when it was withdrawn, and that Plaintiffs would
have accepted the offer had it not been withdrawn.
Alexander 293, 762 F. Supp. 2d at 819 (citations to the record
omitted).
In
addition,
the
court
held
that
although
the
plaintiffs had alleged sufficient facts to make it plausible
that Wade acted “without justification,” she was an “insider”
with
the
power
to
vote
for
or
against
any
settlement
and
therefore may be entitled to a qualified privilege unless the
60
plaintiffs demonstrated genuinely disputed facts that could, if
believed, overcome it.
With
a
fully
See id. at 819–20.
developed
factual
record,
the
court
now
revisits whether Wade is entitled to a qualified privilege, even
assuming that a disclosure can be attributed to her.
Earlier in
the litigation, plaintiffs contended that Wade disclosed both
the
names
settlement
outcry
of
the
amount,
that
EEOC
claimants
which
caused
the
allegedly
City
to
Alexander, 762 F. Supp. 2d at 778.
raised
any
briefing
argument
that
Wade
or
as
provided
disclosed
well
as
contributed
abandon
the
to
$750,000
a
settlement.
public
See
However, plaintiffs have not
any
the
evidence
settlement
in
the
amount
because the Sharing Agreement is silent as to it).
current
(probably
The court
will therefore treat that aspect of the claim as having been
abandoned. 50
Cherry and Pryor do not attempt to argue at this stage that
Wade was not an “insider”; rather, they assert that she lacked
justification because her methods of disclosure were improper.
(Doc. 210 at 20.)
justification
Indeed, “[one] approach to pleading lack of
against
an
methods were improper.”
‘insider’
is
to
allege
that
Wade's
Alexander 293, 762 F. Supp. 2d at 821
50
Even if this aspect of the claim were not abandoned, it would fail
because the premise of the claim – that the amount had not been
publicly disclosed – has been demonstrated to be patently false, as
set forth in the discussion of the parallel claim against the City
based on the same premise. See infra Part II.C.4.
61
(citing Embree Const. Grp., Inc. v. Rafcor, Inc., 330 N.C. 487,
498, 411 S.E.2d 916, 924 (1992)).
In North Carolina, insiders to contract negotiations may
still be held liable for tortious interference with contract if
they acted with “legal malice.”
See, e.g., Varner v. Bryan, 113
N.C. App. 697, 701–02, 440 S.E.2d 295, 298 (1994).
Although the
parties have not directed the court to, nor can it locate, any
North Carolina case applying the “legal malice” standard to a
claim
of
tortious
interference
with
prospective
economic
advantage, the elements of these torts are similar, and there is
no
reason
to
believe
that
insider
status
would
not
provide
similar protection in such cases. 51
Therefore, Cherry and Pryor
must
for
produce
sufficient
evidence
a
reasonable
jury
to
conclude that Wade acted with “legal malice,” assuming that she
caused the disclosure of the Sharing Agreement to Hammer.
A person acts with legal malice “if [s]he does a wrongful
act
or
exceeds
[her]
legal
right
51
or
authority
in
order
to
The elements of tortious interference with contract are: “(1) a
valid contract between the plaintiff and a third person which confers
upon the plaintiff a contractual right against a third person; (2)
defendant knows of the contract; (3) the defendant intentionally
induces the third person not to perform the contract; (4) and in doing
so acts without justification; (5) resulting in actual damage to the
plaintiff.”
Embree, 330 N.C. at 498, 411 S.E.2d at 924.
The main
difference between the torts is that tortious interference with
prospective economic advantage allows a plaintiff to recover against a
third party for preventing the formation of a contract, while tortious
interference with contract allows recovery for interfering with the
rights of a plaintiff under a valid, executed contract.
62
prevent the [formation] of the contract between the parties.”
Varner, 113 N.C. App. at 702, 440 S.E.2d at 298.
Legal malice
is distinct from “actual malice,” and North Carolina cases have
established that a plaintiff must prove legal malice, not actual
malice,
in
Reichhold
a
tortious
Chem.,
Inc.
interference
v.
Goel,
with
146
contract
N.C.
App.
case.
137,
149,
See
555
S.E.2d 281, 288–89 (2001) (citing Childress v. Abeles, 240 N.C.
667, 675, 84 S.E.2d 176, 182 (1954)).
Thus, the evidence must
show that Wade “acted without any legal justification” for her
actions.
Varner,
113
N.C.
App.
at
702,
440
S.E.2d
at
298
(citing Childress, 240 N.C. at 675, 84 S.E.2d at 182 (emphasis
added)).
Cherry
and
Pryor
argue
that
because
the
names
of
the
plaintiffs who filed charges of discrimination with the EEOC
were confidential under N.C. Gen. Stat. § 160A–168(a), there is
evidence that Wade knew the names were confidential and thus
acted with the requisite intent.
Wade
knew
at
the
time
that
They appear to assume that
disclosing
the
would violate the confidentiality statute.
Sharing
Agreement
Even assuming that
the names of the plaintiffs were confidential under the statute,
however, the undisputed evidence shows that Wade did not act
with legal malice.
Cherry and Pryor do not dispute that the City produced the
Sharing Agreement to Wade pursuant to a valid public records
63
request.
Plaintiffs argue that Wade nevertheless should have
concluded that the Sharing Agreement was a confidential document
that
was
wrongfully
produced
by
the
City.
Under
these
circumstances, however, Wade was entitled to assume that the
Sharing Agreement produced to her as a result of her request for
contracts the City entered into was a public document that she
could
disclose.
But
she
did
not
disclose
the
document
to
Hammer; rather, she told him he would have to seek his own
public records request, which he did.
By directing him to do
so, Wade did not act wrongfully or exceed her authority.
It is
of no moment that Hammer’s copies of the putative public records
were obtained by copying Wade’s collection rather than requiring
the City to gather all the records from all City agencies yet
again.
The
documents
the
City
had
produced
to
Wade
were
represented to be public records in any event, and thus she had
a legal justification for making her copies available to the
City for copying. 52
Consequently,
Wade’s
acts,
viewed
in
the
light
most
favorable to Cherry and Pryor, do not subject her to liability
for tortious interference with prospective economic advantage.
52
Furthermore, Cherry and Pryor’s reliance on § 160A–168 is misplaced.
It is a criminal statute that confers no private right of action on
aggrieved persons.
Houpe v. City of Statesville, 128 N.C. App. 334,
350–51, 497 S.E.2d 82, 93 (1998).
64
4.
Cherry
Breach of contract claims against the City
and
Pryor’s
remaining
breach
of
contract
claims
against the City are premised on their contention that the City
breached
the
Stipulation
by
disclosing
the
names
of
the
plaintiffs who filed EEOC charges and the proposed settlement
amount.
The Stipulation provided:
1. This stipulation shall govern any statement
information by any party, to any other party
connection with the mediation of this action.
or
in
2.
No
person
who
receives
any
statement
or
information during the mediation shall disclose it to
any non-party for any purpose.
(Doc. 180–5 (emphasis added).)
By the plain language of the
Stipulation, it governs only information received by the parties
during the EEOC’s mediation.
With respect to the identities of the plaintiffs, including
Cherry
and
Pryor,
the
City
is
correct
that
the
undisputed
evidence shows that the City received the names before the EEOC
mediation.
As plaintiff Brian James admitted in his deposition,
City Legal, which represented the City at the mediation, was
already
aware
mediation.
of
(Doc.
the
180–3
names
at
of
4–5.)
the
plaintiffs
Thus,
the
before
City
did
the
not
“receive” the names as part of the mediation process and could
not have breached the Stipulation by disclosing them.
Whether
the names were confidential under § 160A–168 is irrelevant in
65
this
determination;
the
cause
of
action
is
for
breach
of
contract, and the contract at issue is the Stipulation.
As to the disclosure of the $750,000 settlement amount,
this
court
judgment
stated
on
the
in
its
pleadings
denial
that
of
the
“[t]he
City’s
City
has
motion
the
for
better
argument as to the settlement offer amount, because the [second
amended
complaint]
originated
Alexander
with
v.
the
City
explicitly
alleges
that
City,
conveyed
it
of
which
Greensboro,
No.
3360644, at *10 (M.D.N.C. Aug. 3, 2011).
this
to
amount
Plaintiffs.”
1:09–CV–293,
2011
WL
This allegation was
unchanged in the third amended complaint, which is the current
operative complaint (Doc. 88 ¶ 125), and remains undisputed.
Consequently, the settlement amount cannot be information that
the City “received” in the mediation.
Plaintiffs now appear to have abandoned this claim, as they
no longer contend that Wade or the City released the amount.
But plaintiffs should not be let off so easily.
The allegations
as to the disclosure of the settlement amount are problematic.
Throughout this litigation, the plaintiffs have kept this claim
alive with the representation that the $750,000 settlement offer
was first disclosed by Hammer’s November 13, 2008, article that
sourced the figure from a document released by Wade.
(Third
Amended
Complaint)
¶
134,
66
Doc.
50
(Second
(Doc. 88
Amended
Complaint) ¶ 134.) 53
over
the
amount,
once
withdraw the offer.
court
permitted
Plaintiffs alleged that a public outcry
it
was
revealed,
caused
the
City
Alexander 293, 762 F. Supp. 2d at 810.
the
claim
to
survive
based
on
to
The
plaintiffs’
allegations and representations.
Now
that
discovery
has
been
completed,
however,
the
undisputed evidence shows that a $750,000 settlement offer had
been outstanding since August 19, 2008 – months before Hammer’s
November article.
(Doc. 132-14 ¶ 29.)
More importantly, the
Rhino Times had published the amount not once, but twice in
separate articles, on September 11, 2008 (Doc. 180–28 at 3), and
October 23, 2008 (Doc. 180–29 at 6), well before the City’s and
Wade’s alleged disclosure of the Sharing Agreement.
of
the
plaintiffs’
withdrawn
settlement
as
a
claim
result
amount
to
the
–
of
that
Wade’s
Rhino
the
settlement
alleged
Times,
which
The premise
offer
release
made
it
of
was
the
public
presumably for the first time – is belied by the record and
exposes the plaintiffs’ claim as built on a patent falsehood
from the beginning.
In sum, the undisputed evidence shows that the City already
knew that Cherry and Pryor had filed EEOC charges and knew the
53
Both complaints state, in relevant part: “[a]t the time of the
November 13, 2008 publication of the article, no public document
existed which contained the specific monetary amount the Defendant
Greensboro agreed to pay the Plaintiffs to resolve the matters.”
67
settlement
amount
before
the
negotiations;
the
City
did
not
“receive” those facts from the Alexander plaintiffs during the
EEOC-sponsored negotiations.
Therefore, Cherry and Pryor cannot
survive summary judgment on their breach of contract claims.
III. CONCLUSION
For the reasons stated, the court concludes that Cherry and
Pryor
have
reasonable
failed
jury
environment,
to
to
produce
find
tortious
in
sufficient
their
favor
interference,
and
on
evidence
the
breach
for
hostile
of
a
work
contract
claims.
IT
IS
THEREFORE
ORDERED
that
the
motions
for
summary
judgment by the City (Doc. 179; Doc. 104 in case 1:09CV934),
Wade (Doc. 183), and the GPD Defendants (Doc. 181) are GRANTED,
and that the case be DISMISSED.
IT IS FURTHER ORDERED that the motions to strike (Doc. 261;
Doc. 191 in case 1:09CV934) are DENIED AS MOOT.
/s/
Thomas D. Schroeder
United States District Judge
December 18, 2013
68
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