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Welton v. Durham County

United States District Court, M.D. North Carolina

August 28, 2017

DURHAM COUNTY, DURHAM COUNTY BOARD OF COUNTY COMISSIONERS, WENDELL DAVIS, in his individual and official capacity, and KATHY EVERETT-PERRY, in her individual and official capacity, Defendants.


          Catherine C. Eagles, District Judge.

         Marqueta Welton was employed for over ten years by Durham County, first as the Director of Human Resources, then as Deputy County Manager, and finally as an Economic Development Officer. She alleges that after a new County Manager was hired, she was treated badly, demoted, and exposed to a work environment so hostile that she left her job. She asserts claims against the defendants under § 1983, Title VII, and North Carolina law. Except for her Title VII retaliation claim, the complaint fails to allege sufficient facts to support the asserted federal causes of action, and her state claims are barred by governmental and public official immunity. The Court will therefore grant the motions to dismiss as to all claims except the Title VII retaliation claim against Durham County.

         I. Facts Alleged in the Complaint

         In 2013, Ms. Welton and defendant Wendell Davis were both finalists for the position of Durham County Manager. Doc. 1 at ¶ 12. Mr. Davis asked Ms. Welton to withdraw her application. Id. at ¶ 13. Ultimately, Ms. Welton withdrew and continued to work for Durham County as one of two deputy managers. See Id. at ¶¶ 8, 13, 81.

         After Mr. Davis became the County Manager in April 2014, he treated Ms. Welton with hostility, cancelled meetings with her for no reason, and made unsubstantiated claims that she was not doing her job well. Id. at ¶¶ 14-20, 27-30. That summer, Mr. Davis suspended her for five days without pay. Id. at ¶ 20. After she filed several internal appeals, Mr. Davis rescinded the suspension but left in place a corrective action plan. Id. at ¶¶ 21-26.

         On February 1, 2016, Mr. Davis hired Jodi Miller, a white woman, as the other deputy manager. Id. at ¶ 32. Soon after, he made Ms. Miller the Acting County Manager while he was out of town, even though Ms. Welton was more experienced. Id.

         On February 25, 2016, Mr. Davis notified Ms. Welton that he intended to reorganize the county manager's office. Id. at ¶ 33. Instead of two deputy managers, there would be five general managers who were subject matter experts. Id. at ¶¶ 44-45. Ms. Welton would not be a general manager under this plan, but would be demoted to the new position of Economic Development Officer at significantly less pay. See Id. at ¶ 37.

         On March 10, 2016, Ms. Welton filed a grievance of her expected demotion and pay reduction, which Mr. Davis denied. Id. at ¶ 44-45. On April 1, 2016, Ms. Welton filed a new grievance with human resources and the Durham County Board of County Commissioners. Id. at ¶ 58.

         In April, Mr. Davis publicly announced and then implemented his reorganization plan for the county manager's office. Id. at ¶¶ 34, 40. Ms. Welton was demoted to Economic Development Officer effective April 25. Id. at ¶ 37. With the assistance of the Human Resources director, defendant Kathy Everett-Perry, Mr. Davis reduced Ms. Welton's salary almost fifty percent. Id. He also moved her office to another building and blocked her access to the county administration offices. Id. at ¶ 41. Her new building's primary functions included probation services and drug testing, which created circumstances not conducive to her economic development work. Id. at ¶¶ 41, 49. Ms. Welton had little assistance or guidance in her new position and she did not receive her June 2016 performance review or potential merit increase. Id. at ¶¶ 50-52.

         Ms. Welton filed an Equal Employment Opportunity Commission (“EEOC”) complaint alleging race, sex, and age discrimination and retaliation on July 14, 2016. Doc. 14-3; see Doc. 1. at ¶ 60. On September 1, 2016, Ms. Welton received a new project from her supervisor, general manager Jay Gibson. Doc. 1 at ¶¶ 48, 52. The project had short deadlines and required specialized engineering skills outside her expertise and job description. Id. at ¶¶ 52-56. After informing Mr. Gibson that she did not feel “comfortable taking the lead, ” Mr. Gibson replied that while “others can offer input, ” he expected her to “lead and manage” the project. Id. at ¶¶ 55-56. Ms. Welton developed stress and anxiety from these working conditions and took leave under the Family Medical Leave Act at the end of September 2016. Id. at ¶ 57. She ultimately resigned. Id. at p. 2.

         After receiving a right-to-sue letter from the EEOC, Ms. Welton sued Durham County, the Durham County Board of County Commissioners, Mr. Davis in his individual and official capacities, and Ms. Everett-Perry in her individual and official capacities. See Doc. 1 at ¶ 60. She asserts claims under § 1983, Title VII, and North Carolina law. The defendants move to dismiss all claims against them. Docs. 11, 13.[1]

         I. First Amendment Retaliation Claim

         Ms. Welton asserts that the defendants retaliated against her for (1) “competing against Davis for the position of county manager, ” and (2) “for seeking redress of her grievances.” Doc. 1 at ¶ 62. Neither of these qualifies as speech on “a matter of public concern.” Goldstein v. Chestnut Ridge Volunteer Fire Co., 218 F.3d 337, 351 (4th Cir. 2000) (citation omitted). Ms. Welton's application to be County Manager and her withdrawal from that application process constituted “a general course of conduct, not the expression of any idea or opinion” sufficient to state a claim of First Amendment retaliation. Dennison v Cty. of Frederick, 921 F.2d 50, 54 (4th Cir. 1990).[2] Likewise, “a public employee's expression of grievances concerning [her] own employment is not a matter of public concern.” Huang v. Bd. of Governors of Univ. of N.C. , 902 F.2d 1134, 1140 (4th Cir. 1990). The Court will dismiss Ms. Welton's First Amendment retaliation claim for failure to state a claim.

         II. § 1983 Claims: Fourteenth Amendment

         a. Liberty

         Without public communication, negative statements about a plaintiff do not impair the due process liberty interest in her “good name, reputation, honor, or integrity.” Bishop v. Wood, 426 U.S. 341, 348 (1976) (quotation omitted); Sciolino v. City of Newport News, 480 F.3d 642, 646-47 (4th Cir. 2007) (requiring stigmatizing statements to be “made public by the employer”). Ms. Welton asserts that the defendants “stigmatized [her] as incapable of handling the rigorous duties of a deputy county manager or county manager, ” Doc. 1 at ¶ 68, but she has not alleged any specific statements made by any defendant to that effect, nor has she alleged that any such stigmatizing reasons for her demotion were made public. Her complaint does not state a claim for deprivation of a liberty interest.

         b. Property

         “Under North Carolina law, an employee has a protected ‘property' interest in continued employment only if the employee can show a legitimate claim to continued employment under a contract, a state statute, or a local ordinance.” Peace v. Emp't Sec. Comm'n of N.C. , 349 N.C. 315, 321, 507 S.E.2d 272, 277 (1998). Durham County ordinances establish that county employees are at-will employees and do not have “any property rights in employment.” Durham Cty. Code of Ordinances § 18-84; see Jenkins v. Weatherholtz, 909 F.2d 105, 107 (4th Cir. 1990) (finding Virginia law precluded property interest in continued employment); Hooper v. North Carolina, 379 F.Supp.2d 804, 816 (M.D. N.C. 2005) (finding North Carolina law precludes the same).

         Ms. Welton asserts that she had “an expectancy . . . of continuing employment” based on the compensation policy, personnel policies, and the County's disciplinary process. Doc. 1 at ¶¶ 74-75; see e.g., Perry v. Sindermann, 408 U.S. 593, 602-03 (1972) (finding mutual understanding of continued employment creating a protectable property interest may be based on “rules and understandings, promulgated and fostered by state officials”). However, she has not alleged any facts tending to show or from which one could plausibly infer that these policies were incorporated into her employment contract or into state or local law. See Pittman v. Wilson Cty., 839 F.2d 225, 229 (4th Cir. 1988) (finding at-will employee had no property interest in continued employment based on a personnel resolution that lacked the formal process for a county ordinance); Johnson v. Pitt Cty. Bd. of Educ., No. 4:16-CV-214-D, 2017 WL 2304211, at *9, 13 (E.D. N.C. May 25, 2017) ...

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