Cherry v. Elizabeth City State Univ.

• Decision Date: 02 November 2015
• Docket Number: No. 2:13–CV–71–D,2:13–CV–71–D
• Citation: 147 F.Supp.3d 414
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: Paul Eugene Cherry, Plaintiff, v. Elizabeth City State University, Defendant.

147 F.Supp.3d 414

Paul Eugene Cherry, Plaintiff,

v.Elizabeth City State University, Defendant.

No. 2:13–CV–71–D

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

Signed November 2, 2015

Paul E. Cherry, Moyock, NC, pro se.

Alexander McClure Peters, Stephanie Ann Brennan, N.C. Department of Justice, Raleigh, NC, for Defendant.

ORDER

JAMES C. DEVER III, Chief United States District Judge

Paul E. Cherry (“Cherry” or “plaintiff”), an African–American male, is a retired police officer who worked at Elizabeth City State University (“ECSU” or “defendant”). Cherry (who proceeds pro se) claims that ECSU did not promote him to captain in April 2011 due to his race and later retaliated against him for complaining about race discrimination, thereby violating Title VII of the Civil Rights Act of 1964. See Am. Compl. [D.E. 21]. On August 12, 2015, ECSU moved for summary judgment [D.E. 35] and filed supporting exhibits [D.E. 35–1–35–23] and a memorandum of law [D.E. 36]. On August 31, 2015, Cherry responded in opposition. See [D.E. 37]. On September 10, 2015, ECSU replied. See [D.E. 38]. As explained below, the court grants ECSU's motion for summary judgment.

I.

In 2008, ECSU hired Cherry as a police officer. Cherry Dep. [D.E. 35–5] 5–6.¹ Cherry reported to Anton Thomas and Chief of Police Sam Beamon. Id. 6–7. Both Thomas and Beamon are African–American males. See id. 10–11.

Officer Mark Gray is white and became an ECSU police officer in May 2003. See [D.E. 35–10] 6, 10. In 2008, ECSU promoted Gray to sergeant, a supervisory position. See Gassaway Decl. [D.E. 35–3] ¶ 5. In 2009, ECSU gave Gray the title of detective, also a supervisory position, but did not increase Gray's pay. See id. ¶ 6.

On December 17, 2010, ECSU posted a job opening for “Position 983, Public Safety Supervisor,” with a title of “Captain/Emergency Manager Coordinator.” See Branch Decl. [D.E. 35–2] ¶¶ 2–7; [D.E. 35–7]. The captain position was at the “ ‘advanced’ (highest) competency level,” and the person filling this role “would oversee the three shift supervisors within the police department and their officers as well as help manage the Department.” Branch Decl. ¶ 6; see [D.E. 7]; [D.E. 8].

On January 5, 2011, ECSU reposted the captain position, including the emergency management duties of the position and adding a managerial preference for a bachelor's degree and three years of related supervisory work experience. See Branch Decl. ¶ 7; [D.E. 35–8]. ECSU reposted the position two more times in order to increase the number of applicants. See Branch Decl. ¶ 7.

On March 1, 2011, the posting closed. See [D.E. 35–14]. Eleven candidates applied for the captain position, including Gray and Cherry. See Gassaway Decl. ¶¶ 10–13; [D.E. 35–10]; [D.E. 35–11]. Gray's application reflected 27 years of law-enforcement, business-management, and military experience, including three years of law-enforcement supervisory experience at ECSU. See Branch Decl. ¶ 10; [D.E. 35–10] 6–10. Cherry's application reflected four years of experience as a police officer and no law-enforcement supervisory experience. See Branch Decl. ¶ 9; [D.E. 35–11]; Cherry Dep. 135–36. Specifically, Cherry's application stated that he had worked as a police officer for three years with ECSU and approximately one year with Louisburg College campus police. [D.E. 35–11] 8. In addition, Cherry had worked 1½ years as a delivery driver, 5½ years as a thrift store manager, and less than one year with the U.S. Postal Service. See id. 9.

Deborah Branch (an African–American female) served as chair of the search committee for the captain position. See Branch Decl. ¶¶ 3–4. Branch was ECSU's Associate Vice Chancellor of Student Affairs. See id. ¶ 2. The other committee members were Samuel Beamon (an African–American male), Anthony Brown (an African–American male), and Kulwinder Kaur–Walker (an Asian–American female). See id. ¶ 5. The captain position was a high-level position within the ECSU police department, “for which prior supervisory experience, particularly within a college or university, was deemed critical.” Id. ¶ 6. The search committee “evaluated candidates across five competencies that [it] had developed for the position, including squad/department management, technical knowledge, communication skills, organizational awareness and commitment, and problem solving.” Id. ¶ 8.

In April 2011, the committee interviewed four candidates. See id. ¶ 9. The committee did not interview Cherry due to his limited experience. See id. In April 2011, after the interviews, the committee unanimously selected Gray as captain due to his superior qualifications and interview performance. See id. ¶¶ 10–12. When selected, Gray had 18 years of experience as a police officer and additional U.S. Coast Guard experience. See id. Gray had been an ECSU police officer since 2003 and had been supervising several ECSU officers, security officers, and staff since 2008. Id. Gray also performed well during the interview. Id. ¶ 11. Branch never heard any discussion among committee members about any candidate's race and does not believe race factored into Gray's selection in any way. Id. ¶ 13. The committee unanimously selected Gray solely on his qualifications relative to the other candidates. Id. ¶ 14.

On April 26, 2011, Cherry filed an EEOC charge alleging race discrimination. See [D.E. 21–1]. In the EEOC charge, Cherry alleged:

I. I have been employed with the police department since March 2008. I have over 16 years police related experience. [In] October 2008, the Police Chief told myself and Officer Wayne Barcliff (both Black) they were promoting Mark Gray to Sergeant. On or about June 1, 2009, Sergeant Gray was promoted to Detective. There were no announcements for either of these promotions. I applied for the position of Captain February 9, 2011. The position was re-announced two times, each time adding requirements. The additional requirements were experiences Mark Gray received while being Sergeant and Detective. On April 20, 2011, I became aware that I was not selected for the position of Captain.

II. The reason given for promoting Mark Gray to Sergeant and Detective was because they needed to promote White officers in the department.

III. I believe I was denied promotion to the position of Captain because of my race, Black[,] and present effects of past discrimination due to race in violation of Title VII of the Civil Rights Act of 1964, as amended.

Id.

On October 6 and 7, 2011, Cherry called the ECSU tele-communicator and stated that he would not be reporting to work. See Cherry Dep. 65. ECSU policy requires officers to notify their supervisors whenever they are unable to report to work and notify another supervisor if the officer's immediate supervisor is not available. See id. 62–63; [D.E. 35–5] 129. Cherry failed to notify his supervisor, Anton Thomas, or any other supervisor that he would not be reporting to work on those two days. See Thomas Aff. [D.E. 35–20] ¶ 2; [D.E. 35–6] 13–14.

On October 21, 2011, Thomas gave Cherry a written warning for “unacceptable personal conduct” due to his violation of the work rule concerning whom to call when failing to report for duty. See [D.E. 35–5] 135–37. The warning expired in April 2013, without any loss of pay, benefits, or any other adverse employment effects for Cherry. See Cherry Dep. 71–72. Cherry did not receive a performance evaluation in either October or November 2011. See Gassaway Decl. ¶ 17.

On November 9, 2011, Captain Gray notified Cherry that he was being reassigned to the midnight to 8:00 a.m. shift due to an increase in criminal activity during that shift and because “[t]he 12 to 8 supervisor is out on extended medical leave. Two more 12 to 8 police officers are out, one on extended family medical leave and the other is on administrative leave.” See [D.E. 35–5] 140. Although Cherry initially protested the shift change, Cherry later declined an opportunity to serve as a supervisor on the 4–12 p.m. shift. See Cherry Dep. 123–25.

On May 31, 2012, Cherry received a written performance evaluation for 2011–12. See Gassaway Decl. ¶ 18; [D.E. 35–19]. Cherry's overall performance rating for 2011–12 was “good,” and Cherry received individual category ratings of “good” and “very good.” Gassaway Decl. ¶ 18; [D.E. 35–19].

On June 6, 2012, Cherry filed another EEOC charge. See [D.E. 35–5] 122. In the EEOC charge, Cherry alleged retaliation and wrote:

I. I filed charge number 437–2011–00567 on April 26, 2011 alleging discrimination. On October 21, 2011, I was issued a written warning. I called in the way other officers have called in to advise they were not gong to be at work. The other officers have not been disciplined. On October 29, 2011, I was given a low evaluation. On November 9, 2011, I was notified that I was being transferred to the midnight to 8 a.m. shift.

II. The reason given for the disciplinary written warning was not notifying a supervisor of my absence. The reason given for the transfer was safety of the University while other officers were absent.

III. I believe I have been written up, given a low evaluation and transferred to the midnight shift in retaliation for filing a prior charge of discrimination in violation of section 704(a) of Title VII of the Civil Rights Act of 1964, as amended....

Id.

The EEOC did not find cause to support Cherry's charge of race discrimination or retaliation, dismissed each charge, and issued a right to sue notice to Cherry concerning each charge. See [D.E. 35–5]. 123–24. On December 27, 2013, Cherry filed suit. See [D.E. 1, 3, 5]. On June 30, 2015, Cherry retired from ECSU. See Cherry Pep. 170–72.

II.

In considering a motion for summary judgment, the court views the evidence in the light most favorable to the non-movant and applies well-established principles under Rule 56 of the Federal Rules of Civil Procedure. See, e.g., Fed.R.Civ.P. 56 ; Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) ; Celo tex Corp. v....