Brand v. North Carolina Dept. of Crime Control, CIV.1:03 CV 00966.

• Decision Date: 15 December 2004
• Docket Number: No. CIV.1:03 CV 00966.,CIV.1:03 CV 00966.
• Court: U.S. District Court — Middle District of North Carolina
• Parties: Jerry Neal BRAND, Plaintiff, v. NORTH CAROLINA DEPARTMENT OF CRIME CONTROL AND PUBLIC SAFETY; and North Carolina State Highway Patrol, Defendants.

352 F.Supp.2d 606

Jerry Neal BRAND, Plaintiff, v. NORTH CAROLINA DEPARTMENT OF CRIME CONTROL AND PUBLIC SAFETY; and North Carolina State Highway Patrol, Defendants.

No. CIV.1:03 CV 00966.

United States District Court, M.D. North Carolina.

December 15, 2004.

COPYRIGHT MATERIAL OMITTED

Angela Newell Gray, Gray Newell Johnson & Blackmon, LLP, Winston-Salem, NC, for Plaintiff.

Stacey T. Carter, N.C. Department of Justice, Crime Control Section, Raleigh, NC, for Defendants.

MEMORANDUM OPINION

BULLOCK, District Judge.

Jerry Neal Brand ("Plaintiff") filed this action against the North Carolina Department of Crime Control and Public Safety and the North Carolina State Highway Patrol (collectively "Defendants") alleging race discrimination based on disparate treatment, retaliation, and hostile work environment in violation of 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"). Pursuant to Federal Rule of Civil Procedure 56, Defendants moved for summary judgment.¹ For the following reasons, the court will grant in part and deny in part Defendants' motion for summary judgment.

FACTS

Plaintiff, an African-American male, began working as a State Trooper for the North Carolina State Highway Patrol on June 1, 1989. He was assigned to Troop D in Guilford County in April 1992. On November 1, 1992, Plaintiff received a promotion to the position of Senior Trooper. On December 1, 1995, Plaintiff received a promotion to the position of Master trooper. At all times relevant to the matter before the court, Plaintiff worked under the supervision of First Sergeant Tommy Dean Hurley.²

In January 2002, Plaintiff requested and received education leave to take one class while fulfilling his duties as a trooper. Plaintiff alleges that First Sergeant Hurley "harassed [Plaintiff] and made it difficult for him to attend class." (Pl.'s Resp. Defs.' Mot. Summ. J. at 3.) Plaintiff alleges that he was routinely assigned calls while attending or en route to class despite the availability of others to take the calls, whereas other troopers enrolled in classes did not receive calls while attending or en route to class. Plaintiff also alleges that he was wrongly admonished by First Sergeant Hurley for allegedly refusing to take a call because of a class in April 2002.

In July 2002, Plaintiff applied for educational leave with pay to attend school in the fall semester beginning on August 28, 2002. Plaintiff indicated on his request that the class was not taught during his off-duty time. In a purported effort to expedite Plaintiff's leave application, First Sergeant Hurley contacted the school and learned that the class Plaintiff sought to take was available during Plaintiff's off-duty hours. Accordingly, First Sergeant Hurley denied Plaintiff's request on August 21, 2002.

On July 28, 2002, Plaintiff failed to answer or respond to the Troop D Communications Center for approximately thirty-eight minutes. Plaintiff claims that the failure was due to malfunctioning radio equipment in his patrol car and presents an equipment report detailing the repair and replacement history of the radio at issue.

On August 28, 2002, Plaintiff remained in class thirty minutes longer than entitled. Plaintiff advised Sergeant Williams of the delay, and Sergeant Williams advised Plaintiff to work thirty minutes longer to compensate for Plaintiff's tardiness.³ Plaintiff alleges that such accommodations for other troopers were not uncommon. First Sergeant Hurley confronted Plaintiff and admonished him for taking overtime without permission from the appropriate supervisor. Plaintiff responded by saying that he felt that First Sergeant Hurley's admonishment was discriminatory based on Plaintiff's race.

Plaintiff filed an internal grievance against First Sergeant Hurley on September 5, 2002, with Captain Fleetwood and Captain Moody. Plaintiff alleged racial discrimination against African-American troopers by First Sergeant Hurley and the Troop D Radio Communications personnel. After interviewing twenty-nine witnesses, the grievance was closed as unsubstantiated.

In early September 2002, Trooper Gerald Key reported that Plaintiff lied about the July 28, 2002, failure to remain in contact with the communications center incident and that Plaintiff had, in fact, not been on duty but at home.⁴ On September 16, 2002, First Sergeant Hurley met with Plaintiff to discuss allegations of Plaintiff's untruthfulness.

On October 11, 2002, Plaintiff neglected to interview a driver of a wrecked vehicle. It was later determined that the driver of the wrecked vehicle had been impaired at the time of the collision and that his license was revoked. Defendants allege that Plaintiff would have discovered the problems if Plaintiff had carried out his normal duties. (Pl.'s Resp. Defs.' Mot. Summ. J. Ex. B, Hurley Dep. Vol. I at 183-206.)

During the months of September and October 2002, First Sergeant Hurley filed several complaints against Plaintiff. The claims were based on Trooper Key's allegation of untruthfulness, Plaintiff's failure to remain in contact with the communications center on July 28, Plaintiff's August 28 overtime work to compensate for remaining in class too long, and Plaintiff's poor work performance on October 11, 2002. Captain Moody stated to Captain Fleetwood that it might appear that First Sergeant Hurley was "loading up" on Plaintiff because of the number of complaints filed in such a short time period. (Pl.'s Resp. Defs.' Mot. Summ. J. Ex. D, Fleetwood Dep. at 29-30 and attached Ex. 1.)

On October 22, 2002, Defendants assigned Plaintiff to paid administrative leave pending investigation of the claims against him. The claims were based on complaints filed by First Sergeant Hurley. Internal Affairs called Plaintiff's house several times during the investigation, and according to Plaintiff reportedly left intimidating messages on the family voicemail. On October 23, 2002, Plaintiff's wife called Colonel Richard W. Holden, who was then the Patrol Commander, and wrote a letter complaining about the messages.

On November 13, 2002, Internal Affairs determined that the allegations of untruthfulness were unsubstantiated and Captain Moody reinstated Plaintiff to active duty. Investigation into the other complaints filed by First Sergeant Hurley relating to the incidents of July 28, August 28, and October 11, 2002, remained ongoing. Later in November, Captain Fleetwood determined that Plaintiff should be transferred to Durham County and made his recommendation known to Major Cooper. Captain Fleetwood based his determination almost entirely on information from First Sergeant Hurley. On November 25, 2002, Plaintiff was informed that effective December 2, 2002, he would be assigned to Durham County.

On November 27, 2002, Plaintiff checked out of service and informed the communications office that he would be at the local Equal Employment Opportunity Commission ("EEOC") office. Plaintiff went to the EEOC and filed his charge of discrimination alleging retaliation and racial discrimination. Plaintiff was at the EEOC for approximately three hours.

On December 2, 2002, Plaintiff was transferred to Durham County. As a condition of employment and as a result of the transfer, Plaintiff had to establish a residence in Durham County.

Sometime in December 2002, the internal investigation regarding the complaints filed by First Sergeant Hurley closed and Internal Affairs charged Plaintiff with unsatisfactory job performance, violation of patrol rules, and neglect of duty based on the incidents of July 28, August 28, and October 11, 2002, respectively.⁵ Colonel Holden made the decision that the charges were substantiated and ordered a five percent reduction in Plaintiff's salary.⁶ "[D]ue to an oversight" Plaintiff's salary reduction was not effected until October 2004. (Defs.' Mem. Supp. Summ. J. at 5.)

On January 9, 2003, Plaintiff filed a petition with the North Carolina Office of Administrative Hearings ("OAH"). Plaintiff alleged that he was the victim of a demotion without just cause based on his race and in retaliation for complaining about racial discrimination.

In February 2004, Plaintiff received a written warning from Defendants regarding his November 27, 2002, absence from work to file the EEOC charge. (Defs.' Exs. Supp. Mot. Summ. J., Brand Dep. at 165-66.)

DISCUSSION

I. The Court has Subject Matter Jurisdiction to Hear Plaintiff's Claims under Title VII

Title VII creates a federal cause of action for employment discrimination. Candillo v. North Carolina Dep't of Corr., 199 F.Supp.2d 342, 348 (M.D.N.C.2002). Before a federal court may assume jurisdiction over a claim under Title VII, however, a claimant must exhaust state and administrative procedures enumerated in 42 U.S.C. §§ 2000e-5(b) and 2000e-5(c). Davis v. North Carolina Dep't of Corr., 48 F.3d 134, 137 (4th Cir.1995). Despite Defendants' argument otherwise, Plaintiff has properly exhausted his state and administrative remedies.

When alleged discrimination occurs in a state that has enacted a law "prohibiting the unlawful employment practice alleged" and has "establish[ed] or authoriz[ed] a State or local authority to grant or seek relief from such practice,"⁷ Title VII provides that: "no charge may be filed [with the EEOC] under subsection (b) of this section by the person aggrieved before the expiration of sixty days after proceedings have been commenced under the State or local law." 42 U.S.C. § 2000e-5(c). The OAH, North Carolina's state agency established to hear discrimination claims, has sixty days in which to investigate the charge. Yellow Freight Sys., Inc. v. Donnelly, 494 U.S. 820, 825, 110 S.Ct. 1566, 108 L.Ed.2d 834 (1990) (finding that the sixty-day period "give[s] state administrative agencies an opportunity to invoke state rules of law"). "[I]f the complainant initially filed the complaint with the EEOC, which then referred...