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Forbes v. City of Durham

Court of Appeals of North Carolina

September 5, 2017

WINSLOW FORBES, Plaintiff,
v.
CITY OF DURHAM, North Carolina, and JOSE L. LOPEZ, SR. in his individual capacity and in his official capacity as Chief of Police for the City of Durham, and THOMAS J. BONFIELD, in his individual capacity and in his official capacity as City Manager for the City of Durham, Defendants.

          Heard in the Court of Appeals 9 March 2017.

         Appeal by plaintiff from order entered on or about 11 July 2016 by Judge Henry W. Hight in Superior Court, Durham County No. 14 CVS 4155.

          Edelstein & Payne, by M. Travis Payne and Sean Cecil, for plaintiff-appellant.

          Kennon Craver, PLLC, by Joel M. Craig and Henry W. Sappenfield; and Office of the City Attorney, by Kimberly M. Rehberg, for defendant-appellees.

          STROUD, JUDGE.

         Plaintiff Winslow Forbes ("plaintiff") appeals from the trial court's order granting summary judgment for defendants City of Durham ("defendant City of Durham"), Jose L. Lopez, Sr. ("defendant Lopez"), and Thomas J. Bonfield ("defendant Bonfield") and dismissing all of his claims with prejudice. On appeal, plaintiff argues that he has demonstrated several genuine disputes of material facts and that the trial court should not have granted summary judgment on any of his retaliation claims. After review, we disagree and find the trial court did not err in granting summary judgment on all of plaintiff's claims.

         Background

         Plaintiff joined the City of Durham Police Department in 1988. He was promoted to Corporal around 1997, Sergeant around 1999, and Lieutenant around 2001. Defendant Lopez became Chief of Police in 2007. Defendant Lopez promoted plaintiff to Captain in 2009, and a little more than a year later, on 13 August 2010, he appointed him to Assistant Chief.

         Plaintiff was considered for a promotion to Deputy Chief on two occasions: first, in May 2012, when he and Assistant Chief Larry Smith were considered for an open Deputy Chief position. Defendant Lopez ultimately selected Assistant Chief Smith for the promotion. Plaintiff "believed that both he and [Assistant Chief] Smith were well-qualified candidates." Nevertheless, afterwards, plaintiff told defendant Lopez that "there were many black officers who were qualified for promotion, but Chief Lopez had consistently promoted non-black officers over equally or better-qualified black officers." Plaintiff also allegedly told defendant Lopez that "many black officers had a perception of discrimination[.]" Defendant Lopez "responded in a defensive and angry tone." Plaintiff alleged in his complaint that it appeared to him that defendant Lopez "was angry about the suggestion that even a perception of discrimination might exist."

         Plaintiff alleged that after this conversation, defendant Lopez did not take any action to address either actual or perceived racial discrimination and that he then began treating plaintiff differently than similarly-situated white colleagues. For example, plaintiff described a situation involving a black male Lieutenant under his command and a white male subordinate officer who received a coaching and counseling memo from the Lieutenant for violating a department policy and then complained to a white male Sergeant in Internal Affairs. The Lieutenant told plaintiff he had previously been treated unfairly by this Sergeant and he was concerned he would once again be treated unfairly during this investigation. Plaintiff requested another Internal Affairs officer be assigned to this investigation; afterwards, defendant Lopez decided plaintiff would not be allowed to review the investigative file, in contrast to the typical process where each individual in the chain of command above the person under investigation can review the file and determine whether or not they agree with Internal Affairs' conclusions. Plaintiff told defendant Lopez he felt he was being treated differently than white commanding officers in similar circumstances.

         In 2013, another Deputy Chief retired, leaving a position available. Plaintiff alleges that he was the only remaining candidate for promotion based on the Review Panel's assessments approximately six months earlier. Plaintiff alleges that "[t]he usual and customary practice of the Police Department has been to promote the next individual on the list of qualified applicants from the Review Panel, provided that the list is not more than eighteen months old." But on 18 February 2013, defendant Lopez informed plaintiff that he intended to conduct a new process for the open Deputy Chief position. "Plaintiff believes that [defendant] Lopez made this decision on the basis of race, and in retaliation for [p]laintiff's opposition to race discrimination within the Police Department."

         Plaintiff filed a complaint with Human Resources on 28 February 2013, alleging race discrimination and retaliation by defendant Lopez. Plaintiff applied for the open Deputy Chief position and was interviewed by the Review Panel in March 2013. Defendant Lopez informed plaintiff on 21 March 2013 that he had selected Assistant Chief Anthony Marsh -- a black male -- for the Deputy Chief position over plaintiff. Plaintiff alleged in part that Chief Lopez "failed to promote him to Deputy Chief in retaliation for his opposition to race discrimination by Chief Lopez."

         Plaintiff told defendant Lopez both via email and verbally that he believed the promotion process "had been unfair, discriminatory, and retaliatory." On 25 March 2013, defendant Lopez gave plaintiff a coaching and counseling memo in response to his claims of discriminatory and retaliatory practices. Plaintiff filed a supplemental complaint with Human Resources regarding the memo. Defendant City of Durham then hired a consultant to investigate plaintiff's allegations. Human Resources contacted plaintiff on 7 June 2013 and informed him that "the consultant found his allegations of race discrimination to be 'not substantiated' but had been 'unable to determine' whether retaliation had occurred."

         Plaintiff further alleged that on 2 July 2013, defendant Lopez made a "racially offense remark in the presence of his Executive Committee and several other City employees." Defendant Lopez was preparing for a press conference regarding recent shootings in Durham; he pointed out that all of the recent shooting victims were African-American and had been involved in criminal activity. He also stated that all known suspects were African-American. "Plaintiff felt that this remark was offensive because the race of the victims should not be relevant to law enforcement officials." An Assistant Chief pointed out that one of the shooting victims was a black lawyer who was an innocent bystander and not involved in any criminal activity; defendant Lopez responded by stating that "the lawyer deserved to get shot because he was a public defender."

         Plaintiff perceived this remark as racially motivated and highly offensive. On 16 July 2013, he met with defendant Bonfield, who was employed by the City of Durham as City Manager, and reported defendant Lopez's remark. Defendant Bonfield assured plaintiff he took the allegation seriously and that it would be investigated. Defendant Lopez held a press conference on 6 September 2013 and stated that he did not recall making the remark, but he could not be certain that he had not.

         Plaintiff filed his complaint on or about 29 July 2014. Plaintiff's complaint contained several causes of action for race discrimination and retaliation, including: (1) under Title VII against defendant City of Durham; (2) under 42 U.S.C. § 1981 against defendant City of Durham and defendants Lopez and Bonfield in both their official and individual capacities; (3) under 42 U.S.C. § 1983 against defendant City of Durham and defendants Lopez and Bonfield in both their official and individual capacities; and (4) under the North Carolina Constitution against defendant City of Durham and defendants Lopez and Bonfield in their official capacities.

         Defendants City of Durham and Bonfield jointly filed an answer, and defendant Lopez filed a motion to dismiss and answer of his own. On or about 29 May 2015, defendants filed a motion for summary judgment "as to all claims against them in this matter." The motion included an affidavit from defendant Lopez, and defendants argued:

The pleadings in this matter, the attachments thereto, the deposition testimony, the discovery responses in this matter, and the affidavit [of defendant Lopez] . . . demonstrate the absence of a genuine issue of material fact and that [d]efendants are entitled to judgment as a matter of law dismissing all claims against them.

         The trial court held a hearing on the motion on 14 June 2016 and entered an order on or about 11 July 2016 granting defendants' motion for summary judgment and dismissing plaintiff's ...


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