United States District Court, E.D. North Carolina, Southern Division
MALCOLM J. HOWARD UNITED STATES DISTRICT JUDGE.
matter is before the court on defendants' motion for
summary judgment, [DE #64]. Plaintiff has responded, [DE
#87]. Plaintiff has also filed a motion to exclude expert
witness, [DE #86], to which defendants have responded, [DE
#88]. Plaintiff additionally filed a response to
defendants' Statement of Material Facts, [DE #89], to
which defendants responded with a motion to strike, [DE #90]
. This matter is ripe for adjudication.
filed the complaint in this matter on September 30, 2016,
alleging violations of his constitutional rights as well as
violations of state law surrounding his being selected for
drug testing, being asked to resign in lieu of being
terminated, and his failure to be re-hired. By order filed
March 26, 2018, this court granted in part and denied in part
defendants' motion to dismiss, leaving the following
claims by plaintiff for adjudication by the court:
1) Section 1983 Claim for violation of the Fourth Amendment;
2) Section 1983 Claim for violation of the Fourteenth
Amendment Due Process Clause for Deprivation of Liberty
3) Section 1983 Claim for violation of the Fourteenth
Amendment Equal Protection Clause;
4) North Carolina Invasion of Privacy Claim;
5) North Carolina Negligent Training and Supervision Claim
Against Defendant Hardy, in her individual and official
6) Wrongful Discharge Claim.
now move for summary judgment as to all claims. [DE #64 at
OF THE FACTS
an African-American male, began working for defendant
Brunswick County, North Carolina ("the County") in
the Operation Services Department ("OSD") as an
Equipment Operator II in 1988. [DE #1 ¶29]. A Commercial
Driver's License ("CDL") was a requirement of
the position of Equipment Operator II, and plaintiff held
such a license. [DE #68 at 22, 32]. In 1992, plaintiff was
convicted of Driving While Impaired ("DWI") . He
lost his CDL license for a year and was terminated by the
County. Id. at 19-20, 23. After working for several
private companies, plaintiff was rehired by the County in
2000. Id. at 22-23.
January 10, 2011, plaintiff was charged with a second DWI,
but was ultimately not convicted. As a result of the charge,
he lost his CDL license, at least temporarily. The County
chose not to terminate plaintiff, but rather demoted him to a
position that did not require a CDL license, namely a
Maintenance Assistant I which involved a salary cut of $3,
500.00. [ DE #1 ¶40]. Plaintiff additionally was
referred to the County's employee assistance program and
agreed to periodic drug and alcohol testing for the next 12
months. [DE #68 at 35].
reinstatement of his CDL license, plaintiff applied for an
open Equipment Operator II position [DE #68 at 38]. After
interviewing with defendant Bryan Hollis, plaintiff was
re-hired as an Equipment Operator II in approximately 2012.
[DE #68 at 38-39]. During his employment with the County,
plaintiff's supervisors consistently rated his job
performance as "meets or exceeds standards." [DE #1
at ¶15]. In fact, plaintiff received a 2% merit-based
pay raise approximately two weeks before his termination.
Id. ¶¶15, 32.
21, 2014, plaintiff was tested for drug use. Plaintiff
admitted in his deposition that as a CDL holder in 2014 he
was subject to random drug testing by the County. [DE #68 at
39-43]. After plaintiff's sample tested positive for a
controlled substance, plaintiff was given the option to
resign rather than be terminated for cause. Plaintiff chose
to resign on August 15, 2014. [DE #68 at 72, 80] .
plaintiff's resignation in lieu of termination, plaintiff
applied for the position of Equipment Operator II with the
County, a position requiring a CDL, and was denied at least
four separate times. Plaintiff alleges defendants Hollis and
Lewis, with defendant Hardy's approval, selected all
white males to fill all four of the open Equipment Operator
II positions, who were objectively less qualified than
plaintiff. [DE #1 ¶¶32, 35, and 39].
October 9, 2014, plaintiff met with Defendant Hardy, the
County Manager, to discuss his not being rehired and their
alleged discriminatory employment practices. Id.
¶41. However, plaintiff claims he was qualified to be
rehired and that Defendant Hardy failed to investigate or
take any corrective measures in response to plaintiff's
raising his concerns to her.
Plaintiff's Motion to Strike Expert Testimony, [DE
has moved to strike expert testimony of proposed expert
Reginald R. Hines. It is unclear whether plaintiff seeks to
strike the entire report or simply limit the testimony of the
expert. However, as the court did not rely on any legal
conclusions within the expert report in reaching its
conclusion on the motion for summary judgment, the motion to
strike is DENIED AS MOOT.
Defendants' Motion to Strike Plaintiff's Response to
Statement of Material Facts, [DE #90]
have moved to strike plaintiff's response to
defendants' statement of material facts, arguing
plaintiff responded outside the permissible time frame and
without requesting permission. [DE #90]. While plaintiff
technically responded outside the permissible window, the
court notes plaintiff did file a motion for extension of time
on October 12, 2018, to "serve and file a response to
defendants' motion [for summary judgment]." [DE
#85]. This extension request was granted due to two major
storms that impacted eastern North Carolina in September and
October 2018, on the basis of "excusable neglect"
pursuant to Fed.R.Civ.P. 6(b)(1)(B). [ DE #94].
Plaintiff's response, [ DE #87], filed October 12, 2018,
was deemed timely. Plaintiff's response to the statement
of material facts [ DE #89] was filed just three days later
on October 15, 2018. As a response to statement of material
facts is expected to be filed with the response to the motion
for summary judgment, the court construes this document to be
implicitly included in plaintiff's October 12, 2018
extension request. Thus, plaintiff's response to the
statement of material facts, [DE #89], is deemed timely and
defendants' motion to strike, [DE #90], is DENIED.
Standard of Review on Motion for Summary
judgment is appropriate pursuant to Rule 56 of the Federal
Rules of Civil Procedure when no genuine issue of material
fact exists and the moving party is entitled to judgment as a
matter of law. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247 (1986). The party seeking summary judgment
bears the initial burden of demonstrating the absence of a
genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 325 (1986).
the moving party has met its burden, the non-moving party may
not rest on the allegations or denials in its pleading,
Anderson, 477 U.S. at 248, but "must come
forward with 'specific facts showing that there is a
genuine issue for trial.'" Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986) (quoting Fed.R.Civ.P. 56(e)). Summary judgment is
not a vehicle for the court to resolve disputed factual
issues. Faircloth v. United States, 837 F.Supp. 123,
125 (E.D. N.C. 1993). Instead, a trial court reviewing a
claim at the summary judgment stage should determine whether
a genuine issue exists for trial. Anderson, 477 U.S.
at 249 (citing First Nat'l Bank of Ariz. V. Cities
Serv. Co., 391 U.S. 253, 288-91 (1968)).
making this determination, the court must view the inferences
drawn from the underlying facts in the light most favorable
to the non-moving party. United States v. Diebold,
Inc., 369 U.S. 654, 655 (1962) (per curiam). Only
disputes between the parties over facts that might affect the
outcome of the case properly preclude the entry of summary
judgment. Anderson, 477 U.S. at 248. Accordingly,
the court must examine "both the materiality and the
genuineness of the alleged fact issues" in ruling on
this motion. Faircloth, 837 F.Supp. at 125 (citing
Ross v. Commc'ns Satellite Corp., 759 F.2d 355,
364 (4th Cir. 1985)). Furthermore, a mere scintilla of
evidence supporting the case is not enough.
Anderson, 477 U.S. at 252.
court notes in this case plaintiff filed a verified
complaint. "[A] verified complaint is the equivalent of
an opposing affidavit for summary judgment purposes, when the
allegations contained therein are based on personal
knowledge." Williams v. Griffin, 952 F.2d 820,
823 (4th Cir. 1991) (citing Davis v. Zahradnick, 600
F.2d 458, 459-60 (4th Cir. 1979)). "Therefore, a
verified complaint that alleges facts that are made on belief
or information and belief is insufficient to oppose summary
judgment." Walker v. Tyler Cty. Comm'n, 11
Fed. App'x. 270, 274 (4th Cir. June 4, 2001)
(unpublished) (citing Fed.R.Civ.P. 56(e); Ca ...