United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND ORDER
Catherine C. Eagles, District Judge.
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.
Facts Alleged in the Complaint
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.
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 Davis rescinded the suspension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
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.
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.
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 ¶
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.
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.
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.
First Amendment Retaliation Claim
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). 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.
§ 1983 Claims: Fourteenth Amendment
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.
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).
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) ...