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Freeman v. Town of St. Pauls, N.C.

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

August 27, 2019

TOWN OF ST. PAULS, N.C., Defendant.


          W. Earl Britt Senior U.S. District Judge

         This matter is before the court on the Town of St. Pauls' (the “Town”) motion for summary judgment, (DE # 26). Plaintiff, Lisa Michelle Freeman, filed a response in opposition, (DE # 32), to which the Town filed a reply, (DE # 34). This motion is ripe for disposition.

         I. BACKGROUND

         On two separate occasions, plaintiff worked as a police officer for the Town of St. Pauls Police Department (“Department”). (DE # 27, ¶ 1; DE # 33, ¶ 1.) Initially hired in early 2008, plaintiff worked for the Town until she resigned to work for the Hoke County Sheriff's Department in mid-2010. (DE # 27, ¶ 1; DE # 33, ¶ 1.) Approximately four months after her resignation, plaintiff returned to St. Pauls where she worked until her termination on 29 February 2016.[1] (DE # 27, ¶ 1; DE # 33, ¶ 1.) During both terms of plaintiff's employment, Thomas Hagens served as Chief of the Department and was responsible for her hiring. (DE # 27, ¶ 2; DE # 33, ¶ 2.)

         In early 2015, plaintiff began “missing a significant amount of work” due to medical problems. (DE # 27, ¶ 10; DE # 33, ¶ 10.) In April 2015, Chief Hagens and Town Administrator J.R. Steigerwald met with plaintiff “to discuss her missing work and not providing sufficient advance notice.” (DE # 27, ¶ 13; DE # 33, ¶ 13.) During this meeting, plaintiff and Chief Hagens disagreed about the amount of notice required, with plaintiff contending the Town's personnel policy required two hours and Chief Hagens contending his department policy required eight. (DE # 27, ¶ 13; DE # 33, ¶ 13.) Ultimately, plaintiff contends Chief Hagens instructed her to provide at least five hours' notice going forward. (DE # 27, ¶ 13; DE # 33, ¶ 13.) Plaintiff alleges she was the only officer subject to the five-hour requirement. (DE # 27-4, at 46.) Following this meeting, “[plaintiff's] absences continued to be an issue, and in October of 2015, the Town Board of Commissioners approved revisions to the Police Department's Policies and Procedures manual to expressly require Police Department employees to provide 8 hours['] advance notice before taking sick leave.” (DE # 27, ¶ 14; DE # 33, ¶ 14.) Although applicable to all employees, “[plaintiff] felt that this policy change was implemented primarily because of her absences.” (DE # 27, ¶¶ 14-15; DE # 33, ¶¶ 14-15.)

         Thereafter, plaintiff continued to miss time at work. On 24 November 2015, plaintiff contends she left work early after “realiz[ing] she was in too much pain to complete her shift.” (DE # 1, at 5; DE # 11, at 4.) As a result of her leaving without proper notice, Chief Hagens issued plaintiff a written reprimand which also notes that plaintiff has been reminded of the eight-hour policy on multiple occasions. (DE # 1, at 5; DE # 11, at 4; DE # 1-2.) On 22 January 2016, plaintiff called Chief Hagens approximately an hour and a half before her shift to report that she would not be coming in to work due to a power outage at her home. (DE # 27, ¶ 16; DE # 33, ¶ 16.) As a result, Chief Hagens issued her another written reprimand, noting that he had previously instructed her that she must be at work that evening and that she “had been verbally warned about calling in at the last minute.” (DE # 27, ¶ 16; DE # 33, ¶ 16; DE # 27-8.) On 11 February 2016, Chief Hagens again met with plaintiff regarding her absenteeism.[2] (DE # 27, ¶ 17; DE # 33, ¶ 17.) He and Captain Adkins instructed plaintiff that she was prohibited from leaving during a shift without first contacting one of them and explaining the circumstances. (DE # 27, ¶ 17; DE # 33, ¶ 17.) On 25 February 2016, plaintiff, due to back pain, left work approximately two and a half hours before the end of her shift. (DE # 27, ¶ 18; DE # 33, ¶ 18; see also DE # 1, at 6-7.) Plaintiff contends that Sergeant McMillian, who is in her immediate chain of command, gave her permission to leave. (DE # 32-6, at 9.) She also left a note on Chief Hagens' door. (Id.) The following day, plaintiff alleges her doctor took her out of work due to her medical condition. (See DE # 1, at 7.) Plaintiff contends that Chief Hagens was angry when she informed him of this. (Id.) Thereafter, Chief Hagens terminated plaintiff, citing “dereliction of duty” due to her failure to contact himself or Captain Adkins when she left work early on 25 February 2016.


         Summary judgment is appropriate when the record reveals “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party seeking summary judgment must demonstrate the absence of any 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 “must come forward with specific facts showing that there is a genuine issue for trial, ” and may not rest on the allegations or denials in its pleading. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (emphasis and quotation omitted). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson, 477 U.S. at 247-48. In determining whether a genuine issue of material fact exists, 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 (2007).


         Plaintiff alleges the Town discriminated against her because of her sex in violation of Title VII of the Civil Rights Act.[3] An employee may establish a Title VII violation, sufficient to overcome a summary judgment motion, in one of two ways. First, by presenting “‘direct evidence of a stated purpose to discriminate and/or [indirect] evidence of sufficient probative force to reflect a genuine issue of material fact.'” Brinkley v. Harbour Rec. Club, 180 F.3d 598, 607 (4th Cir. 1999) (quoting Goldberg v. Green & Co., 836 F.2d 845, 848 (4th Cir. 1988)). Second, an employee may establish a Title VII violation by proceeding under the McDonnell Douglas framework. Id. Here, plaintiff contends she has established a claim for discrimination under either avenue.

         A. Direct Evidence

         Direct evidence requires “‘evidence of conduct or statements that both reflect directly the alleged discriminatory attitude and that bear directly on the contested employment decision.'” Brinkley, 180 F.3d at 607 (quoting Fuller v. Phipps, 67 F.3d 1137, 1142 (4th Cir. 1995)). While blatantly derogatory statements can constitute direct evidence, stray or isolated remarks are insufficient absent a clear nexus with the adverse employment decision. Melendez v. Bd. of Educ., 711 Fed.Appx. 685, 687 (4th Cir. 2017); Signal v. Gonzales, 403 F.Supp.2d 528, 540 n.5 (D.S.C. 2006) (“Only the most blatant remarks, whose intent could be nothing other than to discriminate . . . constitute direct evidence of discrimination”) (citation omitted). “[D]irect evidence of discrimination requires no inference or presumption on the part of the factfinder.” Arrington v. Smithkline Beecham, Corp., No. 5:02-CV-655-H, 2004 U.S. Dist. LEXIS 27133, at *17 (E.D. N.C. Mar. 30, 2004). Thus, “the evidence must show that the employer announced, admitted, or ‘otherwise unmistakably indicated' that an impermissible consideration was a determining factor, or that discrimination can properly be assumed from the circumstances.” Betof v. Suburban Hosp. Inc., No. DKC 11-1452, 2012 U.S. Dist. LEXIS 90794, at *18 (D. Md. June 29, 2012) (quoting Cline v. Roadway Express, Inc., 689 F.2d 481, 485 (4th Cir. 1982)).

         Here, plaintiff asserts she has presented two pieces of direct evidence of discrimination: (1) Officer Brian Walker's “testimony that [plaintiff] was treated differently because she is a female, ” and (2) Town Administrator Steigerwald's statement that Chief Hagens “specifically named [plaintiff], complained of her perceived absenteeism, and said he wanted the sick notice requirement to be increased to eight (8) hours because of [plaintiff].” (DE # 32, at 11-12.)

         Officer Walker does not report hearing any discriminatory statements made about plaintiff. He testified that he “feel[s] like [plaintiff] was picked on” because “she could outdo the men, ” and “think[s] [this] had [some]thing to do with her sex.” (DE # 32-7, at 13.) In the provided deposition excerpt, Officer Walker does not state who he believes “picked on” plaintiff nor does he offer any evidentiary support for his belief that it was due to her status as a female. Officer Walker does testify that he “think[s] [Chief Hagens] was trying to get rid of [plaintiff].”[4](See id. at 7.) Even assuming Officer Walker believes this to be because of plaintiff's sex- which he does not state-he offers no evidence in support of this belief. Officer Walker's subjective belief regarding the Department's disciplinary enforcement does not constitute direct evidence of discrimination. See Christian v. S.C. Dep't of Labor Licensing & Regulation, 651 Fed.Appx. 158, 165 (4th Cir. 2016) (noting that subjective beliefs about a co-worker's non-selection do not carry any more weight than the plaintiff's assertion that the conduct was discriminatorily motivated); Brinkley, 180 F.3d at 609 (noting an affidavit providing a personal opinion in conclusory fashion is inadequate to constitute direct evidence). Officer Walker's personal beliefs are not “evidence of conduct or statements” which establish a discriminatory attitude by the decisionmaker and bear on the employment decision. See Brinkley, 180 F.3d at 607.

         Likewise, Steigerwald's testimony that Chief Hagens “mention[ed]” plaintiff in the conversation regarding the notice policy does not evidence a purpose to discriminate. (See DE # 32-9, at 2.) Steigerwald actually testified that “[Chief Hagens] said that [plaintiff] was leaving work with less than eight hours-well, with inadequate notice. In other words, he didn't have time to find replacements on two-hours notice.” (Id. at 3.) This statement does not reflect a sexist attitude nor an intent to discriminate against plaintiff. Additionally, Steigerwald testified that prior to 2015 he and Chief Hagens had discussed the problem of replacing officers without adequate notice. (Id.) Thus, Steigerwald testified that the ultimate policy change “was in response to any personnel in the police department not giving notice of at least eight hours” and “[i]t was applied to all of the officers.” (Id. (emphases added).) Chief Hagens' mention of what he deems inadequate notices by plaintiff, during a discussion in which he is seeking a uniformly applicable policy change, does not amount to the type of ...

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