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Hairston v. Barnes

United States District Court, M.D. North Carolina

March 15, 2019

TERRY HAIRSTON, II, Plaintiff,
v.
SHERIFF BJ BARNES, in his official and personal capacities, Defendant.

         FILED UNDER SEAL

          MEMORANDUM OPINION AND ORDER

          OSTEEN, JR., District Judge

         Currently 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.

         I. FACTUAL BACKGROUND

         Plaintiff 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) ¶¶ 12-38.)

         Plaintiff 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 14.)[1] 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.)

         Following 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) ¶ 53.)

         In 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.)

         Plaintiff 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.)

         II. PROCEDURAL HISTORY

         Plaintiff 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.[2]

         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.)

         III. STATUTE OF LIMITATIONS

         Plaintiff 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).

         Title 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).

         While 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.

         Because 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 discrimination claim.

         Plaintiff 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.[3]

         Plaintiff 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.

         IV. STANDARD OF REVIEW

         In 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).

         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. at 248.

         In 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.

         V. MOTION FOR SUMMARY JUDGMENT

         A. Employment Discrimination

         1. Legal Framework

         Title 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).

         Employment 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.”[4] 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).

         A race 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.

         At the 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 position.”).

         While 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.

         2. Failure to Promote

         Plaintiff's 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.

         As to 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 shift.” (Id.)

         Title 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”).

         While 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 ...


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