United States District Court, E.D. North Carolina, Eastern Division
JASMAN J. SMITH, Plaintiff,
TOWN OF WINTERVILLE, Defendant.
W. FLANAGAN, UNITED STATES DISTRICT JUDGE
matter is before the court on defendant's motion for
summary judgment (DE 80), plaintiff's motion for partial
summary judgment (DE 84), and plaintiff's motion to seal.
(DE 87). The issues raised are ripe for ruling. For the
following reasons, the court grants defendant's motion
for summary judgment, denies plaintiff's motion for
partial summary judgment, and grants plaintiff's motion
OF THE CASE
proceeding pro se, commenced this action against former
defendant Winterville Town Council (“Council”),
former defendant and town manager Terri L. Parker
(“Parker”), and defendant, plaintiff's former
employer, on January 31, 2017, asserting claims of
discrimination, denial of promotion, wrongful termination,
and retaliation based on race, disability, and pregnancy, in
violation of Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. § 2000e, et seq.
(“Title VII”), the Americans with Disabilities
Act, 42 U.S.C. § 12101 et seq., and pursuant to
42 U.S.C.§ 1983. On December 5, 2017, upon partial
motion to dismiss, the court dismissed all claims and
defendants except plaintiff's claim against defendant for
racial discrimination based on disparate treatment, wrongful
discharge, and retaliation, in violation of Title VII.
6, 2018, defendant filed a motion to compel, which the court
granted on September 28, 2018, directing plaintiff to
supplement her discovery responses. On October 17, 2018,
defendant filed a motion for sanctions, wherein defendant
asserted that plaintiff failed to comply with the court's
order to supplement her discovery responses, refused to sit
for her first properly noticed deposition, and, upon
attending deposition, refused to answer questions. The court
granted defendant's motion in part, ordering plaintiff to
pay attorneys' fees, costs, and expenses related to
defendant's motion to compel discovery and
plaintiff's October 11, 2018, deposition.
filed a notice to reschedule deposition and a motion for
extension of time to file response on January 16, 2019. The
court denied plaintiff's requests, providing plaintiff
with a deadline of February 4, 2019, to respond to
outstanding written discovery, and February 15, 2019, to
complete plaintiff's deposition. On February 4, 2019,
plaintiff filed a motion to waive sanctions, which the court
denied on March 1, 2019.
March 15, 2019, defendant filed the instant motion for
summary judgment, or in the alternative, dismissal for
failure to prosecute or as a discovery sanction. Defendant
relies upon a statement of material facts, memorandum of law,
and appendix including the following: 1) plaintiff's
deposition, 2) Parker's affidavit, 3) a document titled
“Written Review Disciplinary Conference Concerning Job
Performance” (“written review”), 4) Amy
Barrow's affidavit, and 5) a document titled
“Pre-dismissal Conference Memorandum”
(“memorandum”). That same date, plaintiff filed
the instant motion for partial summary judgment and the
instant motion to seal. In support of those motions,
plaintiff relies upon employment documents, medical records,
and memorandum in support on damages. On April 5, 2019,
defendant responded in opposition to plaintiff's motion
for partial summary judgment.
undisputed facts may be summarized as follows. In July 2008,
defendant hired plaintiff as a temporary executive assistant.
(Pl. Dep. (DE 89-1) 23:15-17; 24:1-2; Def's Stmt. (DE 81)
at 1). Plaintiff became a full-time executive assistant in
December 2008. (Pl. Dep. (DE 89-1) 24:4-9; Def's Stmt.
(DE 81) at 2). In 2010, Parker assumed the role as town
manager and began supervising plaintiff. (Pl. Dep. (DE 89-1)
26:11-18; Def's Stmt. (DE 81) at 2).
promoted plaintiff to town clerk, and selected Amy Barrow to
replace plaintiff as executive assistant. (Pl. Dep. (DE 89-1)
27:17-24; 38:4-6; Def's Stmt. (DE 81) at 2). As town
clerk, plaintiff's duties included drafting minutes,
preparing agendas, managing records, attending meetings,
certifying documents, drafting newsletters, advising the
youth council, and administering oaths. (Pl. Dep. (DE 89-1)
40:19-41:16; Def's Stmt. (DE 81) at 2-3).
March 1, 2016, Parker placed plaintiff on probation for three
months and provided her with a written review chronicling
plaintiff's performance deficiencies. (Written Review (DE
89-3) at 1). Specifically, the written review stated
plaintiff committed following violations of defendant's
personnel policy: (1) insubordination; (2) demonstrated
inefficiency, negligence, or incompetence in the performance
of duties; (3) discourteous treatment of the public or other
employees; (4) habitual pattern of failure to report to duty
at the assigned time and place; and (5) failure to meet work
standards over a period of time. Id. at 3.
Furthermore, the written review warned that plaintiff would
be terminated if she failed to improve. Id. at 3-4.
27, 2016, plaintiff received a memorandum from Parker,
wherein Parker alleged that plaintiff's job performance
had not improved while she was on probation. (Memorandum (DE
89-5) at 1). Specifically, Parker alleged that plaintiff: (1)
distributed an agenda, laden with mistakes, without seeking
the requisite prior authorization from Parker; (2) failed to
submit the required budgets for Town Council, Elections, and
Youth Council; (3) ignored a councilman's request for
information about a board meeting; (4) failed to communicate
regarding reservations of the community room, which caused
the room to become overbooked; (5) failed to ensure the
public hearing on the budget was advertised in the newspaper
as required by law; (6) engaged in disruptive behavior during
a required CPR training session; and (7) locked the town seal
in her office, despite being asked repeatedly to make it
available for others to use. Id. at 1-3. Parker
recommended that plaintiff be dismissed from employment and
notified plaintiff of an impending pre-dismissal conference.
Id. at 3.
the conference, plaintiff received a letter from Parker on
July 1, 2016, terminating plaintiff because of
plaintiff's alleged “insubordination, demonstrated
inefficiency, negligence or incompetence in the performance
of [her] duties, discourteous treatment of the public or
other employees, and failure to meet work standards over a
period of time.” (July 1 Letter (DE 89-2) at 74).
Standard of Review