Disher v. Weaver

• Decision Date: 26 February 2004
• Docket Number: No. 1:02 CV 00529.,1:02 CV 00529.
• Citation: 308 F.Supp.2d 614
• Court: U.S. District Court — Middle District of North Carolina
• Parties: Charlotte W. DISHER, Plaintiff, v. Wilson S. WEAVER, II, Terry R. Jones, Patricia D. Norris, Linda G. Davis, Thomas W. Fredericks, Bryce A. Stuart, in their official and individual capacities, and the City of Winston-Salem, Defendants.

308 F.Supp.2d 614

Charlotte W. DISHER, Plaintiff, v. Wilson S. WEAVER, II, Terry R. Jones, Patricia D. Norris, Linda G. Davis, Thomas W. Fredericks, Bryce A. Stuart, in their official and individual capacities, and the City of Winston-Salem, Defendants.

No. 1:02 CV 00529.

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

February 26, 2004.

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William L. Hill, Matthew L. Mason, Moss Mason & Hill, Greensboro, NC, for Plaintiff.

Gusti W. Frankel, Lucretia D. Guia, Alison Raney Bost, Womble Carlyle Sandridge & Rice, Winston-Salem, NC, for Defendant.

MEMORANDUM OPINION and ORDER

OSTEEN, District Judge.

Plaintiff Charlotte W. Disher, a white female, has filed suit against Defendants Wilson S. Weaver, II, Terry R. Jones, Patricia D. Norris, Linda G. Davis, Thomas W. Fredericks, Bryce A. Stuart, and the City of Winston-Salem, North Carolina. Disher claims that Defendants' actions in terminating her employment deprived her of procedural and substantive due process and equal protection of laws, as secured by the Fourteenth Amendment to the United States Constitution, in violation of 42 U.S.C. § 1983 (" § 1983"), and Article I, section 19 of the North Carolina Constitution. Plaintiff additionally alleges that her termination was the result of illegal discrimination on the basis of race, in violation of 42 U.S.C. § 1981 (" § 1981") and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"). Plaintiff also asserts a state common law claim of wrongful termination. This matter is now before the court on Defendants' motion for summary judgment as to all of Plaintiff's claims and Plaintiff's motion to strike Defendants' suggestion of subsequently decided authority.

I. BACKGROUND

The following facts are stated in the light most favorable to Plaintiff.

On April 24, 2001, Plaintiff, a Senior

Police Officer for the Winston-Salem Police Department, and a trainee, Officer Loumay Miller, received a call reporting a disturbance at 2308 Okalina Avenue. At that address, which was a private residence, Plaintiff encountered Angela Melton engaged in a dispute with Deborah Bethea, an occupant of the home. The dispute regarded child care for Ms. Melton's baby, also the child of Ms. Bethea's son Rashon. Ms. Melton informed the officers that Rashon, whom she believed was inside the house, had an outstanding warrant based on a prior altercation in which he threatened to kill her while beating her head against concrete.

Plaintiff had observed two black males inside the house earlier and believed that one of them was Rashon, based on a description given by Ms. Melton. By radio, Plaintiff confirmed an active warrant against Rashon for communicating threats and assaulting a female. Plaintiff called for backup, directing one of the responding officers, Officer Jorge Alamillo, to retrieve the warrant and telling two others, Officers Edward Haire and Frank Clayton, to watch the back door of the home.

When Officer Alamillo radioed to inform Plaintiff that he had the warrant in-hand, Plaintiff and Officer Miller went to the porch of the residence and informed Ms. Bethea that a warrant for Rashon was on the way. Ms. Bethea denied that Rashon was inside and refused to allow them entry until the warrant arrived. During the discussion, Plaintiff stood with her foot on the threshold so that the front door was partially open and the screen door was at her back. Plaintiff claims she had consent to remain in that position with her foot inside the front door while waiting for the warrant. Ms. Bethea closed the door as far as she could and retreated inside the residence.

At that point, Plaintiff observed an older black male walking up the driveway. This man, later identified as Cleveland Bethea, father of Ms. Bethea and grandfather of Rashon, entered the residence through the back door. Mr. Bethea came to the front door, saw Plaintiff standing on the porch, and attempted to close the door. Plaintiff still had her foot in the door, and advised Mr. Bethea to stop closing it.¹ Mr. Bethea responded to this request by insinuating that he had a weapon and continuing to close the door. Plaintiff claims to have seen bulges in Mr. Bethea's pockets and reached out to frisk him for weapons. As she moved toward him, Mr. Bethea reacted by grabbing Plaintiff's neck and choking her.

As Plaintiff and Mr. Bethea struggled they moved into the house. Officer Miller, still on the porch, did not assist Plaintiff so Ms. Melton ran to the back of the home and informed Officers Haire and Clayton that Plaintiff was being assaulted. Haire and Clayton ran around the side of the home, through the front door, and into the living room where they found Mr. Bethea still choking Plaintiff. Haire and Clayton each grabbed one of Mr. Bethea's arms and tried to restrain him. Plaintiff then pepper-sprayed Mr. Bethea in each eye, aiming around his glasses to do so.

It is unclear whether Mr. Bethea was still struggling with the officers when he was pepper-sprayed; it is also unclear from what distance he was sprayed. After being sprayed, Mr. Bethea broke free of the officers and ran to the bathroom where he rinsed his eyes with water. When he emerged he was arrested for resisting, delaying, or obstructing a government official in the performance of her duties. These charges were later dropped. Rashon Bethea was not found inside the house.

Later that day, Plaintiff's immediate supervisor, Sergeant Howard Brown initiated an investigation, interviewing Plaintiff, Officer Miller, and Deborah and Cleveland Bethea. Sergeant Brown reported his findings to Defendant Lieutenant Wilson Weaver who, in turn, referred the incident to the Professional Standards Division ("the PSD") for formal investigation. During this investigation, several of the officers who witnessed the incident were interviewed and indicated that the operation was handled inappropriately.

On May 10, 2001, the PSD concluded the investigation, finding that violations should be sustained against Plaintiff for improper arrest, search, and seizure, improper use of force, conduct unbecoming, and unsatisfactory performance. The PSD, pursuant to their policy, did not recommend any specific form of discipline. Plaintiff's chain of command, including Defendants Captain Terry Jones and Assistant Chief Patricia Norris determined that Plaintiff should be terminated. On May 14, 2001, Defendant Norris informed Plaintiff of this decision and provided a copy of the Disciplinary Action Report which indicated Plaintiff's violation of Rule of Conduct 24, "Unsatisfactory Performance."

Plaintiff decided to appeal her termination through the police department grievance procedures. The first appeal consisted of a hearing before Defendant Chief Linda Davis, at which Plaintiff was represented by counsel. Defendant Davis upheld the termination. Plaintiff then appealed to Defendant City Manager Bryce Stuart. Defendant Stuart designated Defendant Assistant City Manager Thomas Fredericks to conduct the hearing. Plaintiff attended the hearing and testified. She was again represented by counsel, who was permitted to put on evidence, call witnesses, and cross examine opposing witnesses. At the close of the hearing, Defendant Fredericks reviewed the evidence and recommended that Plaintiff's termination e upheld because (1) Plaintiff was required to have a warrant in hand or consent before entering the residence, (2) Plaintiff failed to follow police procedure by leaving her foot in the door and escalated the situation, (3) Plaintiff was unprofessional and used inappropriate language during the altercation, and (4) Plaintiff failed to follow departmental policy when she pepper-sprayed Mr. Bethea. Defendant Stuart reviewed Defendant Frederick's report on the hearing and agreed that Plaintiff's termination should stand. On November 27, 2001, Defendant Stuart sent a letter to Plaintiff informing her of his decision.

Plaintiff filed a charge with the Equal Employment Opportunity Commission, claiming that the black officers in her chain of command discriminated against her on the basis of race. On April 2, 2002, Plaintiff received her right-to-sue letter from the Commission. (Compl. ¶ 14.) On June 28, 2002, she filed suit against several of her commanding officers, Defendants Weaver, Jones, Norris, and Davis, the city officials who upheld her termination, Defendants Fredericks and Stuart, and the City of Winston-Salem ("the City"). Weaver, Jones, and Norris are black; Davis, Fredericks, and Stuart are white.

II. DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Summary judgment is appropriate when an examination of the pleadings, affidavits, and other proper discovery materials before the court demonstrates that there is no genuine issue of material fact, thus entitling the moving party to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). If the moving party has met that burden, the nonmoving party must then persuade the court that a genuine issue does remain for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). However, there must be more than just a factual dispute; the fact in question must be material and the dispute must be genuine. See Fed R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Although the court must view the facts in the light most favorable to the nonmovant, see Anderson, 477 U.S. at 255, 106 S.Ct. at 2513, "bare allegations unsupported by legally competent evidence do not give rise to a genuine dispute of material fact." Solis v. Prince George's County, 153 F.Supp.2d 793, 807 (D.Md.2001). Summary judgment should be granted unless a reasonable jury could return a verdict in favor of the nonmovant on the evidence presented. McLean v....