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Davis v. Lewis

United States District Court, E.D. North Carolina, Southern Division

March 22, 2019

STEPHANIE LEWIS, individually and in her official capacity as the Director of Brunswick County's Operation Services Department, BRYAN HOLLIS, individually and in his official capacity as the plaintiff s direct supervisor, ANN HARDY, individually and in her official capacity as County Manager for Brunswick County, North Carolina, and BRUNSWICK COUNTY, NORTH CAROLINA, Defendants.



         This 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.


         Plaintiff 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 Interest;
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 capacities; and
6) Wrongful Discharge[1] Claim.

         Defendants now move for summary judgment as to all claims. [DE #64 at 1].


         Plaintiff, 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.[2] [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.

         On 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].

         After 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.

         On July 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] .

         Following 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].

         On 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.


         I. Plaintiff's Motion to Strike Expert Testimony, [DE #86]

         Plaintiff 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.

         II. Defendants' Motion to Strike Plaintiff's Response to Statement of Material Facts, [DE #90]

         Defendants 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.

         III. Standard of Review on Motion for Summary Judgment

         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).

         Once 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)).

         In 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.

         The 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 ...

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