United States District Court, E.D. North Carolina, Western Division
Earl Britt, Senior U.S. District Judge.
matter is before the court on North Carolina Department of
Public Safety, North Carolina State Highway Patrol's
(“Highway Patrol” or “defendant”)
motion for summary judgment. (DE # 28.) Linda Gupton
(“plaintiff”) did not respond. The matter is now
ripe for adjudication.
initial matter, the court notes that because plaintiff failed
to respond to defendant's statement of material facts,
such numbered facts are deemed to be admitted. See
Fed.R.Civ.P. 56(e)(2)(“If a party fails to properly
support an assertion of fact or fails to properly address
another party's assertion of fact as required by Rule
56(c), the court may . . . consider the fact undisputed for
purposes of the motion[.]”); Local Civil Rule
56.1(a)(2) (“Each numbered paragraph in the moving
party's statement of material facts will be deemed
admitted for purposes of the motion unless it is specifically
controverted by a correspondingly numbered paragraph in the
filed her complaint under Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. § 2000e et.
seq. (”Title VII”) on the basis of sex
discrimination. (Compl., DE # 1-2.) Plaintiff was an employee
of Highway Patrol for nineteen years. (Def.'s Statement
of Material Facts, DE # 29, ¶ 2.) In March 2017,
plaintiff, a female sergeant, was the supervisor for the
Training Academy's Polygraph Unit. (Id.
¶¶ 2, 12.) At that time, Lieutenant Robert Reynolds
(“Lieutenant Reynolds”) and Major Shane Manuel
(“Major Manuel”) were in her chain of command.
(Id. ¶ 3.) On 31 March 2017, Highway
Patrol's Internal Affairs (“Internal
Affairs”) received a complaint from Christy Willis
regarding her partner, Sergeant Rich Willis
(“Willis”), allegedly having an affair with
plaintiff on the night of 30 March 2017. (Id. ¶
4.) Based on the complaint, Internal Affairs opened an
unbecoming conduct investigation for plaintiff and Willis.
(Id.) That day, Major Manuel and Lieutenant Reynolds
both spoke with plaintiff regarding the allegation.
(Id. ¶ 5-6.) A week later, on 4 April 2017,
Lieutenant Reynolds spoke with plaintiff again regarding the
allegation. (Id. ¶ 7.) Later in the month,
plaintiff spoke with Major Manuel regarding the allegation.
(Id. ¶ 8.)
upon these conversations, Major Manuel recommended to another
officer, Lieutenant Colonel J.A. Melvin, that plaintiff be
transferred to another unit while Internal Affair's
conducted its investigation. (Id. ¶¶ 11,
12.) Accordingly, in late April 2017, plaintiff was
transferred from her position with the Training Academy's
Polygraph Unit to “special assignment” Troop C,
District 8. (Id. ¶ 12.) Plaintiff remained a
sergeant at this time. (Id. ¶ 14.)
August 2017, Internal Affairs concluded that the unbecoming
conduct allegation from the 31 March 2017 complaint was not
substantiated; however, plaintiff was terminated from
employment with Highway Patrol on three separate
substantiated claims: untruthfulness during the complaint
investigation, insubordination, and a residency violation.
(Id. ¶¶ 17, 21.) Plaintiff challenged her
termination, which was then upheld solely on the basis of her
violation of Highway Patrol's truthfulness policy.
(Id. ¶ 22.)
Highway Patrol found three violations of its truthfulness
policy: (1) on 31 March 2017 plaintiff provided a false
statement to Major Manuel and Lieutenant Reynolds that she
stayed in Orange County, North Carolina, with her mother,
only stopping at her condominium to give Willis a check; (2)
during the week of 1 April 2017 plaintiff provided a false
statement to Lieutenant Reynolds that she stayed at her
condominium with Willis and her mother; and (3) on 17 April
2017 plaintiff provided a false statement to Major Manuel
that she did not have a relationship with Willis.
(See Final Dismissal Notice, DE # 32-2, at 2.)
Plaintiff contends she provided an untruthful statement to
Major Manuel because it was her belief that she did not have
to divulge this information due to the informality of the
conversation and its setting. (Gupton Dep., DE # 32-3, at 69,
STANDARD OF REVIEW
judgment is appropriate when the record as a whole reveals no
genuine issue of material fact and the moving party is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986). The party seeking summary judgment initially
must demonstrate the absence of a genuine issue of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). Once the moving party has met its burden, the
nonmoving party may not rest on the allegations or denials in
its pleading, Anderson, 477 U.S. at 248-49, but
“must come forward with specific facts showing that
there is a genuine issue for trial, ” Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986) (emphasis and quotation omitted). A trial court
reviewing a motion for summary judgment should determine
whether a genuine issue of material fact exists.
Anderson, 477 U.S. at 249. In making this
determination, the court must view the evidence and the
inferences drawn therefrom in the light most favorable to the
nonmoving party. Scott v. Harris, 550 U.S. 372, 378
contends that plaintiff has failed to establish a prima facie
case under Title VII. “[T]he elements of a prima facie
case of discrimination under Title VII are: (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. Maryland Court of Appeals,
626 F.3d 187, 190 (4th Cir. 2010), aff'd sub nom.
Coleman v. Court of Appeals of Maryland, 566 U.S. 30
(2012). Defendant raises a number of grounds for judgment in
its favor. However, the court's analysis focuses solely
on defendant's argument that plaintiff fails to show that
she received treatment different from similarly situated
employees outside of her protected class. (Def.'s Mem.
Supp. Summ. J., DE # 31, at 7.)
standard for whether employees are similarly situated
requires that their circumstances be nearly identical.”
Frazier v. N. Carolina Dep't of Transportation,
No. 4:14- CV-149-D, 2016 WL 5416609, at *4 (E.D. N.C. Sept.
26, 2016) (citations omitted); Cf. Lightner v. City of
Wilmington, N.C. , 545 F.3d 260, 265 (4th Cir. 2008)
(finding the Acting Division Commander of the Professional
Standards Division to be a unique position, not comparable to
another officer who was neither in the Professional Standards
Division or an Acting Division Commander);
Ivanova-Nikolova v. E. Carolina Univ., No.
4:08-CV-209-BR, 2011 WL 2462468, at *11 (E.D. N.C. June 17,
2011) (finding that a tenured professor and department chair
and an assistant professor on the tenure track in the same
department not similarly situated because they were not at
the same place in their career). The circumstances courts
evaluate are “attributes, experience, education, and
qualifications” of the subject employees.
Frazier, 2016 WL 5416609, at *4 (internal quotation
marks and citation omitted).
defendant's evidence shows that “all members of
[Highway] [P]atrol for which allegations of untruthfulness
have been substantiated have been dismissed, unless the
member chose to retire or resign in lieu of dismissal.”
(Def.'s Statement of Material Facts, DE # 29, ¶ 23.)
Defendant further shows that plaintiff's transfer to
Troop C, District 8 was unique, resulting from concerns over
“the perception of having a potentially untruthful
person in charge of the [Highway] Patrol's Polygraph
Unit.” (Id. ¶11.) Although plaintiff
alleges unnamed male employees at Highway Patrol were treated
differently than plaintiff was for engaging in similar
conduct, (see Compl., DE # 1-2, at 3, 4), plaintiff
has not come forward with any detailed evidence, such as the
individuals' conduct, supervisors in charge, lack of
investigation, or consequence of their actions, for the court
to analyze. See Swaso v. Onslow Cty. Bd. of Educ.,
698 Fed.Appx. 745, 749 (4th Cir. ...