United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
before this court is Defendant BJ Barnes' motion for
summary judgment. (Doc. 50.) Defendant asks this court to
enter summary judgment on his behalf on Plaintiff Terry
Hairston's claims for race-based employment
discrimination, retaliation, and failure to accommodate a
medical disability. Defendant has also moved to seal, (Doc.
51), the exhibits to his motion to summary judgment, and
Plaintiff has moved to seal, (Doc. 56), certain exhibits to
his response opposing summary judgment. For the reasons that
follow, this court finds that Defendant's motion for
summary judgment should be granted, Defendant's motion to
seal should be granted, and Plaintiff's motion to seal
should be granted in part and denied in part.
was employed by the Guilford County Sheriff's Office from
April 1994 until November 2016. (Fourth Amended Complaint
(“Fourth Am. Compl.”) (Doc. 42) ¶¶ 39,
70.) The Sheriff's Office is divided into detention and
patrol branches; the detention branch deals primarily with
prison inmates and is generally considered inferior in pay
and benefits to the patrol branch. (Id. ¶ 9.)
Plaintiff describes a long history of allegedly
discriminatory treatment by the Sheriff's Office against
black employees, including a systematic practice of failing
to promote black officers in the patrol branch. (See
Id. ¶¶ 10-11.) Defendant admits that certain
of the underlying events occurred but does not agree that any
of the acts constitute discrimination. (See
generally (Doc. 43).) Plaintiff further alleges, by
reference to specific examples, that white officers generally
receive more favorable job opportunities and more lenient
discipline than similarly-situated black officers.
(See Fourth Am. Compl. (Doc. 42) ¶¶
consistently received stellar performance reviews and, in
2002, was promoted to sergeant within the detention branch.
(Id. ¶¶ 40-41.) In October 2012, Plaintiff
applied for a Transportation Sergeant position with an 8 a.m.
to 5 p.m. schedule instead of twelve-hour rotating shifts.
(Id. ¶ 42.) This was a lateral move to another
sergeant position with different job responsibilities.
(Excerpts from Pl.'s 11/16/2017 Deposition
(“Pl.'s Dep. B”) (Doc. 58-2) at
Plaintiff was not selected for the position, which was
instead given to a white Master Corporal who had worked in
the Transportation Department; the white corporal was
selected for the job in January 2013. (Fourth Am. Compl.
(Doc. 42) ¶ 46; Pl.'s Dep. B (Doc. 58-2) at 16.)
Shortly after not receiving the Transportation Sergeant
position, in the spring of 2013, Plaintiff was promoted to
Shift Lieutenant within the detention branch. (Pl.'s Dep.
B (Doc. 58-2) at 16-17.) Plaintiff filed a discrimination
charge with the Equal Employment Opportunity Commission
(“EEOC”) in April 2015. (Fourth Am. Compl. (Doc.
42) ¶ 47.)
his first EEOC filing, Plaintiff alleges that Defendant
retaliated against him in several ways. First, time was
removed from Plaintiff's work entries, lowering his pay,
and the secretary responsible for monitoring time cards told
Plaintiff she was instructed by Human Resources
(“HR”) to remove this time. (Id. ¶
48.) Second, Plaintiff alleges that his files and emails were
monitored. (Id. ¶ 49.) Third, Plaintiff
received a formal disciplinary letter and was placed on
probation in June 2015 for improperly checking prisoner's
cells, which Plaintiff contends was a disproportionate
response to this violation. (Id. ¶ 50;
Pl.'s Dep. B (Doc. 58-2) at 23.) Fourth, Plaintiff was
allegedly disparaged by Defendant over email and during an
in-person meeting in October 2015. (Fourth Am. Compl. (Doc.
42) ¶¶ 51-52.) After Plaintiff raised concerns that
detention officers were treated less favorably, Plaintiff
alleges that Defendant made statements to him during a
department-wide meeting that alluded to this litigation and
referenced a willingness to “bow up in the sand and . .
. fight . . . [by] instruct[ing Defendant's] attorneys to
go to trial.” (Pl.'s Dep. B (Doc. 58-2) at 51-52.)
Due to these events, Plaintiff filed an EEOC retaliation
charge in February 2016. (Fourth Am. Compl. (Doc. 42) ¶
April 2016, Plaintiff alleges that he was forbidden from
wearing his department-issued toboggan (a wool hat) inside
the office, contrary to Sheriff's Office policy.
(Id. ¶¶ 54-56.) Plaintiff produced a
doctor's note and was subsequently permitted to wear the
hat. (Id. ¶ 57.) In May 2016, Plaintiff
informally complained within the department that terminated
black officers were treated more harshly than terminated
white officers. (Id. ¶ 58.) The day after
making this observation, Plaintiff's parking fob and key
card did not function properly and Plaintiff was forced to
enter the Sheriff's Office through the visitor entrance.
(Id. ¶¶ 59-61; Pl.'s Dep. B (Doc.
58-2) at 38.) In June 2016, Plaintiff's paycheck omitted
holiday pay amounts for Memorial Day and Plaintiff had to
alert Human Resources (“HR”) to fix the issue.
(Fourth Am. Compl. (Doc. 42) ¶ 62.)
was diagnosed with anxiety disorder in July 2016 and took
paid medical leave between July 29, 2016 and October 24,
2016. (Id. ¶¶ 63-65.) As the expiration
date of Plaintiff's paid leave neared, Plaintiff asked
co-workers to donate their leave time to him. (Id.
¶ 66.) Plaintiff later learned that some of the
potential donors had been approached and investigated by
Internal Affairs for violating department policy.
(Id.; Pl.'s Dep. B (Doc. 58-2) at 44-45.)
Plaintiff was permitted to receive and use the maximum number
of donated hours. (Pl.'s Dep. B (Doc. 58-2) at 42.)
Plaintiff then requested additional unpaid leave, which was
granted through November 4, 2016. (Excerpts from Pl.'s
11/16/2017 Deposition (“Pl.'s Dep. A”) (Doc.
53-1) at 25.) Plaintiff requested further leave through
December 20, 2016, but the Sheriff's Office denied this
request and terminated Plaintiff on November 4, 2016. (Fourth
Am. Compl. (Doc. 42) ¶¶ 67, 70; Doc. 53-3 at 6.)
received an EEOC right-to-sue letter on September 30, 2015,
(Doc. 10-2), and timely filed his initial complaint in this
court on December 29, 2015. (Doc. 1.) Plaintiff subsequently
amended his complaint four times. The current version is the
Fourth Amended Complaint, (Fourth Am. Compl. (Doc. 42)),
which lists only Barnes as Defendant.
filed an answer to the complaint, (Doc. 43), and subsequently
moved for summary judgment, (Doc. 50). Defendant filed a
memorandum in support of his motion for summary judgment.
(See Def.'s Mem. of Law in Supp. of Mot. for
Summ. J. (“Def.'s Mem.”) (Doc. 54).)
Defendant simultaneously moved to seal certain exhibits
attached to his motion for summary judgment, (Doc. 51), and
submitted a brief in support of that motion, (Doc. 52).
Plaintiff responded opposing the motion for summary judgment.
(See Pl.'s Resp. Br. in Opp'n to Def.'s
Mot. for Summ. J. (“Pl.'s Resp. Br.”) (Doc.
55).) Plaintiff also moved to seal exhibits attached to his
response, (Doc. 56), and submitted a brief in support of that
motion, (Doc. 57). Defendant then replied in support of his
motion for summary judgment. (See Doc. 60.)
STATUTE OF LIMITATIONS
brings his employment discrimination claim in part under
Title VII of the Civil Rights Act of 1964. The enforcement
provisions of Title VII state that “[a] charge under
this section shall be filed within one hundred and eighty
days after the alleged unlawful employment practice
occurred.” 42 U.S.C. § 2000e-5(e)(1); see also
Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,
109-10 (2002) (stating that “a litigant has up to 180
or 300 days after the unlawful practice happened to file a
charge with the EEOC, ” depending on whether the
litigant also files their complaint with a state agency).
“Each discrete discriminatory act starts a new clock
for filing charges alleging that act.” Morgan,
536 U.S. at 113. “[A] timely charge of discrimination
with the EEOC is not a jurisdictional prerequisite to suit in
federal court, but a requirement that, like a statute of
limitations, is subject to waiver, estoppel, and equitable
tolling.” Zipes v. Trans World Airlines, Inc.,
455 U.S. 385, 392 (1982) (footnote omitted).
VII further requires that a plaintiff “exhaust her
administrative remedies by filing a charge of discrimination
with the EEOC” before bringing suit. Hentosh v. Old
Dominion Univ., 767 F.3d 413, 416 (4th Cir. 2014). The
failure to do so means that a federal court lacks subject
matter jurisdiction over the claim. Id. When
“the claims raised under Title VII exceed the scope of
the EEOC charge and any charges that would naturally have
arisen from an investigation thereof, they are procedurally
barred” because the plaintiff has failed to exhaust
remedies as to those claims. Dennis v. Cty. of
Fairfax, 55 F.3d 151, 156 (4th Cir. 1995). The one
exception to this general rule is that new retaliation claims
may be brought in federal court in the first instance even if
not specifically asserted in an EEOC charge, when based on a
good faith belief that the alleged retaliatory conduct
relates to the original charge. See Nealon v. Stone,
958 F.2d 584, 590 (4th Cir. 1992).
Defendant does not contest the timeliness of Plaintiff's
claims or whether Plaintiff has exhausted his administrative
remedies, this court will briefly examine these threshold
requirements. Plaintiff's discrimination claim is based,
in part, on the alleged adverse employment action of
Defendant's failure to promote Plaintiff to the
Transportation Sergeant position. This act occurred in
January 2013, when a white Master Corporal was selected for
the position instead. (Fourth Am. Compl. (Doc. 42) ¶
46.) Plaintiff filed his first EEOC charge on April 2, 2015,
(id. ¶ 47), at least 791 days after the
allegedly wrongful failure to promote. The complaint does not
contain any allegations regarding the intervening period
between January 2013 and April 2015, or any allegations that
suggest the 180-day filing window should be equitably tolled
in Plaintiff's case. Therefore, to the extent that
Plaintiff's discrimination claim is based on the alleged
failure to promote, Plaintiff has failed to abide by the EEOC
filing requirements and the claim is not timely.
the 180-day limit is not a jurisdictional requirement, courts
generally do not dismiss those claims or pieces of claims
that fall outside of the relevant time window sua
sponte without action by the defendant raising statute
of limitations as an affirmative defense. See Zipes,
455 U.S. at 398 (describing the holding in Mohasco Corp.
v. Silver, 447 U.S. 807 (1980); observing that the
Supreme Court did not dismiss plaintiff's untimely claims
sua sponte, but rather assumed jurisdiction over all
claims because the employer did not raise the issue). Statute
of limitations is an affirmative defense that must be raised
by the defendant, either in the answer or in a motion to
dismiss. Fed.R.Civ.P. 8(c)(1) (“In responding to a
pleading, a party must affirmatively state any avoidance or
affirmative defense, including . . . statute of
limitations.”); see also Eriline Co. S.A. v.
Johnson, 440 F.3d 648, 653-54 (4th Cir. 2006)
(“Where a defendant has failed to raise a statute of
limitations defense by way of its answer, the defense is
usually waived.”). Here, Defendant does not raise
statute of limitations in his answer, (see Doc. 43),
and this court will therefore consider the defense waived
despite Plaintiff's apparent failure to comply with the
statutory filing requirements for his failure-to-promote
also did not file an EEOC charge after he was terminated. To
the extent that Plaintiff's discrimination claim is based
on Plaintiff's 2016 termination, this court finds that
Plaintiff has failed to exhaust administrative remedies
because Plaintiff's EEOC charges, both of which were
filed prior to his termination, do not describe to the
termination and Plaintiff failed to file an additional EEOC
charge within 180 days of being fired. See Hentosh,
767 F.3d at 415-16 (affirming a district court's
dismissal of a discrimination claim based on denial of
tenure, where the plaintiff filed an EEOC charge prior to
being denied tenure). This fact deprives this court of
subject matter jurisdiction over Plaintiff's
termination-based discrimination claim.
filed his second EEOC charge in February 2016 and alleges
multiple retaliatory acts in the immediately preceding
180-day period. (See Fourth Am. Compl. (Doc. 42)
¶¶ 48-52.) Therefore, this charge was timely filed
as to those events. As to additional allegedly retaliatory
events (including Plaintiff's ultimate termination),
Plaintiff may properly pursue a retaliation claim based on
these events despite not filing an event-specific EEOC charge
because the events are reasonably related to Plaintiff's
February 2016 charge. See Nealon, 958 F.2d at 590.
STANDARD OF REVIEW
reviewing a motion for summary judgment, this court must
determine whether there remains a “genuine dispute as
to any material fact.” Fed.R.Civ.P. 56(a). “Once
a defendant makes a properly supported motion for summary
judgment, the burden shifts to the plaintiff to set forth
specific facts showing that there is a genuine issue for
trial.” Sylvia Dev. Corp. v. Calvert Cty., 48
F.3d 810, 817 (4th Cir. 1995). “On summary judgment the
inferences to be drawn from the underlying facts . . . must
be viewed in the light most favorable to the party opposing
the motion.” United States v. Diebold, Inc.,
369 U.S. 654, 654 (1962) (per curiam). If there is no genuine
dispute about any fact material to the moving party's
claim, then “the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a).
factual dispute is genuine when “the evidence is such
that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986); see also First
Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S.
253, 289-90 (1968) (stating that a dispute is not genuine for
summary judgment purposes when one party rests solely on
allegations in the pleadings and does not produce any
evidence to refute alternative arguments). This court must
look to substantive law to determine which facts are material
- only those facts “that might affect the outcome of
the suit under the governing law will properly preclude the
entry of summary judgment.” Anderson, 477 U.S.
addition, “the mere existence of some alleged
factual dispute between the parties will not defeat an
otherwise properly supported motion for summary
judgment.” Id. at 247-48. “[T]he
non-moving party must do more than present a scintilla of
evidence in its favor.” Sylvia Dev., 48 F.3d
at 818. Ultimately, “there is no issue for trial unless
there is sufficient evidence favoring the nonmoving party for
a jury to return a verdict for that party.”
Anderson, 477 U.S. at 249.
MOTION FOR SUMMARY JUDGMENT
VII and 42 U.S.C. §§ 1981 and 1983 each prohibit
employment discrimination on the basis of race. See,
e.g., 42 U.S.C. § 2000e-2(a)(1). A race-based
employment discrimination claim asserts that the plaintiff
“belongs to a racial minority” and was either not
hired, fired or suffered some adverse employment action due
to his race. McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802 (1973).
discrimination claims ordinarily deal with
“ultimate” employment decisions - the
employer's decision to hire, fire, promote or demote an
employee. Page v. Bolger, 645 F.2d 227, 233 (4th
Cir. 1981). Title VII liability also extends to any
“adverse employment action” that had “some
significant detrimental effect on [the employee].”
Boone v. Goldin, 178 F.3d 253, 256 (4th Cir. 1999).
An adverse employment action Title VII claim includes the
following elements: “(1) membership in a protected
class; (2) satisfactory job performance; (3) adverse
employment action; and (4) different treatment from similarly
situated employees outside the protected
class.” Coleman v. Md. Ct. of Appeals,
626 F.3d 187, 190 (4th Cir. 2010); see also Love-Lane v.
Martin, 355 F.3d 766, 787 (4th Cir. 2004).
discrimination plaintiff is required to plead facts that
permit the court to reasonably infer each element of the
prima facie case, including less favorable treatment than
similarly-situated employees outside of the protected class.
McCleary-Evans v. Md. Dep't of Transp., State Highway
Admin., 780 F.3d 582, 585 (4th Cir. 2015). A plaintiff
may prove a Title VII claim either by direct or indirect
evidence, or under the McDonnell Douglas
burden-shifting framework. Foster v. Univ. of Md.-E.
Shore, 787 F.3d 243, 249 (4th Cir. 2015). Under the
burden-shifting framework, after the plaintiff has made a
plausible showing of each element, the claim will survive a
motion to dismiss and the burden then shifts to the defendant
to provide “some legitimate, nondiscriminatory
reason” for the disparate treatment. McDonnell
Douglas, 411 U.S. at 802. “This burden is one of
production, not persuasion; it can involve no credibility
assessment.” Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 142 (2000) (internal quotation marks
and citation omitted). Finally, once the defendant has put
forth a non-discriminatory rationale, the plaintiff must
“show that petitioner's stated reason for [the
adverse action] was in fact pretext.” McDonnell
Douglas, 411 U.S. at 804.
summary judgment stage, “a reason cannot be proved to
be a pretext for discrimination unless it is shown
both that the reason was false, and that
discrimination was the real reason.” St. Mary's
Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993) (internal
quotation marks omitted). In other words, it is not enough
for the plaintiff to merely refute the proffered
non-discriminatory explanation; rather, the plaintiff also
bears the burden of producing evidence “on which a
juror could reasonably base a finding that discrimination
motivated the challenged employment action.”
Vaughan v. Metrahealth Cos., 145 F.3d 197, 202 (4th
Cir. 1998), abrogated on other grounds by Reeves,
530 U.S. 133 (2000); see also Okoli v. City of
Balt., 648 F.3d 216, 223 (4th Cir. 2011) (“The
City also maintains it had a legitimate nondiscriminatory
reason for terminating Okoli that has not been shown to be
pretextual. Okoli must then show that the proffered reason is
false.”); Smith v. First Union Nat'l Bank,
202 F.3d 234, 249 (4th Cir. 2000) (“Smith has failed to
produce sufficient evidence that discrimination motivated
First Union's failure to transfer her to a new
the employer meets its burden of production solely by putting
forth any legitimate non-discriminatory rationale
for the adverse action, the plaintiff may still avoid summary
judgment if “the trier of fact can reasonably infer
from the falsity of the explanation that the employer is
dissembling to cover up a discriminatory purpose.”
Reeves, 530 U.S. at 147; see also Guessous v.
Fairview Prop. Invs., LLC, 828 F.3d 208, 217 (4th Cir.
2016). And, “once the employer's justification has
been eliminated, discrimination may well be the most likely
alternative explanation, especially since the employer is in
the best position to put forth the actual reason for its
decision.” Reeves, 530 U.S. at 147.
Failure to Promote
race discrimination claim, brought pursuant to 42 U.S.C.
§ 1981 and 42 U.S.C. § 2000e-2(a)(1), is based on
two discrete actions: (1) Defendant's failure to promote
Plaintiff to the Transportation Sergeant position to which he
applied, and (2) Defendant's termination of Plaintiff.
(Fourth Am. Compl. (Doc. 42) ¶ 75.) Plaintiff is
African-American and thus a member of a protected class.
Love-Lane, 355 F.3d at 787.
Plaintiff's failure-to-promote claim, this court does not
believe that Plaintiff's application to the
Transportation Sergeant position was in fact a potential
promotion. Plaintiff admits that the Transportation Sergeant
opening was not a “promotion in
position” because Plaintiff was already a sergeant at
the time, and Plaintiff agrees that the intended move was
“lateral”; Plaintiff also was unsure whether the
new position would have come with an increase in salary.
(See Pl.'s Dep. A (Doc 53-1) at 10-11.) However,
Plaintiff asserts that the Transportation Sergeant position
entailed a better working schedule than his existing position
because he would have worked only “Monday through
Friday eight to five, [rather than] . . . a 12-hour rotating
VII liability extends only to adverse employment actions,
which normally involve “such obvious end-decisions as
those to hire, to promote, etc., ” Page, 645
F.2d at 233, and actions that have a significant detrimental
effect on the employee. In this vein, several courts have
held that “[r]efusing an employee's request for a
purely lateral transfer does not qualify as an ultimate
employment decision.” See Burger v. Cent. Apartment
Mgmt., Inc., 168 F.3d 875, 879-80 (5th Cir. 1999)
(collecting cases and noting that the court's view
“comports with the clear trend of authority in other
circuits holding that a purely lateral transfer is not an
adverse employment action”); see also O'Neal v.
City of Chi., 392 F.3d 909, 912-13 (7th Cir. 2004)
(holding that a similar internal police department transfer
to a unit with different responsibilities and a different
schedule did not constitute adverse action; noting that
“any lateral job transfer will result in changes to an
employee's job responsibilities and work conditions . . .
[and] a plaintiff must show something more than the ordinary
difficulties associated with a job transfer”).
Boone v. Goldin and its progeny recognize that an
adverse employment action extends beyond a defined set of
employer decisions, see Boone, 178 F.3d at 256, this
court finds that denial of a purely lateral transfer request
will rarely, if ever, have a significant detrimental effect
when the potential transfer does not involve a salary
increase or a demonstrable improvement in career prospects.
Here, Plaintiff alleges only that the consistent 8 a.m. to 5
p.m. schedule would have been beneficial, (Pl.'s Dep. A
(Doc. 53-1) at 11), and that the working conditions in the
Transportation Department were less traumatic and less
stressful, (see Pl.'s Dep. B (Doc. 58-2) at
55-56.) But the Fourth Circuit has explicitly rejected
“vague allegations of stress” in the context of
employer-driven reassignment and noted that, “absent
any [change] in compensation, job title, level of
responsibility, or opportunity for promotion, reassignment to
a new position commensurate with one's salary level does
not constitute an adverse employment action even if the new
job does cause ...