Gray v. Laws

• Decision Date: 20 January 1994
• Docket Number: No. 93-60-CIV-5-D.,93-60-CIV-5-D.
• Citation: 915 F. Supp. 747
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: John D. GRAY, Plaintiff, v. Tony LAWS, individually and officially as an Orange County Health Department employee; Dan Reimer, individually and officially as Orange County Health Director; Orange County Health Department; and Orange County, Defendants.

915 F. Supp. 747

John D. GRAY, Plaintiff, v. Tony LAWS, individually and officially as an Orange County Health Department employee; Dan Reimer, individually and officially as Orange County Health Director; Orange County Health Department; and Orange County, Defendants.

No. 93-60-CIV-5-D.

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

January 20, 1994.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

M. Jackson Nichols, Allen & Pinnix, Raleigh, NC, for John D. Gray.

Robert H. Sasser, III, Womble, Carlyle, Sandridge & Rice, Raleigh, NC, James Redfern Morgan, Jr., Winston-Salem, NC, Geoffrey E. Gledhill, Coleman, Gledhill & Hargrave, Hillsborough, NC, for Tony Laws, Dan Reimer, Orange County Health Department and Orange County.

MEMORANDUM OF DECISION

DUPREE, District Judge.

Plaintiff, John D. Gray, filed this action against defendants Tony Laws and Dan Reimer, in their official and individual capacities, and against the Orange County Health Department ("OCHD") and Orange County. Plaintiff sets forth several causes of action in his complaint, all allegedly arising from his dismissal as a sanitarian with the OCHD. First, plaintiff claims, pursuant to 42 U.S.C. § 1983, that defendants violated his First Amendment right to freedom of speech and his Fourteenth Amendment right to due process. Second, plaintiff asserts several North Carolina state law claims including civil conspiracy, a violation of his state constitutional rights, intentional infliction of emotional distress against defendants Reimer and Laws, and negligent retention by defendants Reimer and Orange County. The action is currently before the court on three motions by defendants: (1) a motion to dismiss based on Eleventh Amendment immunity; (2) a motion for summary judgment; and (3) a motion to amend defendants' answer.

The following is an overview of the undisputed facts. Plaintiff was a sanitarian for the OCHD for numerous years until his dismissal on May 7, 1990. Defendant Laws is the director of environmental health for the OCHD and was plaintiff's direct supervisor from 1977 until 1990. Defendant Reimer, who ultimately dismissed plaintiff, is the OCHD director.

In early 1990, defendants Laws and Reimer were informed of two instances in which plaintiff was alleged to have made improper sexual remarks to women while inspecting facilities in Orange County. On January 24, 1990 defendants Laws and Reimer met with Jeff Ensminger to discuss complaints that plaintiff made comments containing sexual innuendos to Mr. Ensminger's wife. Additionally, another individual present at the January 24 meeting, Spence Dickinson, indicated that Ms. Lynn Rollins also had expressed complaints that plaintiff had made improper remarks or advances to her while conducting an inspection.

After the January 24 meeting, defendant Laws at defendant Reimer's request conducted a preliminary investigation into these allegations. Shortly after the January 24 meeting, defendant Laws spoke with both Mrs. Hillary Ensminger and John Wilson, an employee of the Ensmingers, who allegedly witnessed the remarks made by plaintiff to Mrs. Ensminger. Defendants Laws and Reimer also interviewed Ms. Rollins on February 5, 1990.

After the February 5 interview with Ms. Rollins, defendant Reimer placed plaintiff on compulsory leave of absence with pay pending further investigation of the charges against him. After plaintiff's suspension, defendant Reimer involved the Orange County attorney, Geoff Gledhill, in further investigating these allegations. Mr. Gledhill interviewed Carol Layh, who allegedly witnessed plaintiff's inappropriate remarks to Ms. Rollins. Mr. Gledhill also re-interviewed Mrs. Ensminger and John Wilson. Mr. Gledhill provided defendant Reimer with a report concerning all these interviews.

At the conclusion of the formal investigation, defendant Reimer sent plaintiff a memorandum dated April 10, 1990, detailing the specific allegations being made against him and apprising him of his right to respond at a pre-dismissal conference. After receiving the memorandum but before the pre-dismissal hearing, plaintiff's attorney took the deposition of Mr. and Mrs. Ensminger and Lynn Rollins. Defendant Reimer had all the information gained in the investigation and the depositions taken by plaintiff's attorney at the pre-dismissal hearing. Additionally, plaintiff testified at the pre-dismissal hearing. After the hearing, defendant Reimer dismissed plaintiff by letter dated May 7, 1990. In the letter, defendant Reimer stated that the "validated" complaints of Ms. Rollins and the Ensmingers were the specific reasons for his dismissal.

Plaintiff subsequently appealed his dismissal by filing a petition with the North Carolina Office of Administrative Hearings ("OAH"). Plaintiff's petition asserted that his dismissal was without just cause and that it violated due process requirements. After the OAH conducted a hearing, temporary administrative law judge ("ALJ") Peter J. Sarda issued a proposed decision on September 12, 1991 concluding that plaintiff's due process rights had not been violated but that the reason for dismissing plaintiff did not constitute just cause. The State Personnel Commission adopted the ALJ's proposed decision on February 19, 1992 and recommended that plaintiff be reinstated with back pay and awarded attorney's fees. Defendant Reimer declined to follow the recommendation of the Personnel Commission in his final decision issued on March 13, 1992.

Plaintiff subsequently filed a petition for judicial review of defendant Reimer's final decision in the Wake County Superior Court. Judge Robert L. Farmer issued an order on October 1, 1992 adopting the findings of fact and conclusions of law of the Personnel Commission, awarding reinstatement, back pay and attorney's fees to plaintiff. The case is currently pending in the North Carolina Court of Appeals. Despite the pendency of this state proceeding, plaintiff filed this action on January 15, 1993, seeking to recover additional damages that he claims could not have been compensated for in the OAH proceeding and the corresponding civil suit in state court.

I. MOTION TO DISMISS

A. Official Capacity Claims against Defendants Reimer and Laws

Defendants Laws and Reimer move to dismiss based on Eleventh Amendment immunity pursuant to F.R.Civ.P. 12(b)(1). The individual defendants claim that they were acting merely as agents of the state and thus are immune from suit in federal court. Plaintiff contends that defendants acted autonomously with regard to personnel decisions and thus were not acting as agents of the state.

The undersigned, sitting by designation in the Western District of North Carolina, recently determined that local health department directors act as agents of the state in enforcing rules governing installation of residential septic systems. See Houck & Sons, Inc. v. Transylvania County, 852 F.Supp. 442 (W.D.N.C.1993), affirmed, No. 93-1462 (4th Cir.). Further, the North Carolina Court of Appeals held that local health departments are agents of the state when enforcing the rules governing sanitary sewage systems. EEE-ZZZ Lay Drain Company v. North Carolina Department of Human Resources ("E Z Lay Drain"), 108 N.C.App. 24, 29, 422 S.E.2d 338, 341 (1992).

In the present case, plaintiff sues not for defendants' actions in enforcing rules and regulations governing sewage and septic systems, but instead for their decision to dismiss plaintiff from his position as a sanitarian for the OCHD. Courts have utilized a "functional" analysis in determining whether an individual acts on behalf of the state or the county, noting that the same individual "is not always a state employee or always a county employee." Dotson v. Chester, 937 F.2d 920, 928 (4th Cir.1991) (sheriff acted on behalf of county in operating and managing county jail); see also Owens v. Fulton County, 877 F.2d 947, 950 (11th Cir.1989) (district attorney was agent of the state in exercising prosecutorial discretion). Thus, the court must determine whether defendants acted as agents of the state or county in dismissing plaintiff.

Determining whether an officer acts on behalf of the state or a county is a question of state law. See Dotson, 937 F.2d at 924; Owens, 877 F.2d at 950. Thus, North Carolina law governs this issue, and, specifically, N.C.G.S. § 130A-41(b)(12) (1992) provides that local health department directors have the authority "to employ and dismiss employees of the local health department in accordance with Chapter 126 of the General Statutes." Id. Chapter 126 of the North Carolina General Statutes establishes a system of personnel administration for both state government employees and also local employees paid entirely or in part from federal funds. N.C.G.S. § 126-1 (1993). Thus, Section 130A-41(b)(12) requires local health department directors to follow state personnel procedures in dismissing department employees.

Plaintiff concedes that the local health department directors must comply with all state personnel procedures. However, he notes that pursuant to N.C.G.S. § 126-37(a) (1993), on an appeal of an employee's adverse employment decision, the State Personnel Commission's decision is merely advisory to the local appointing authority except in certain circumstances not applicable in this case. Id. Thus, plaintiff argues that because the State Personnel Commission's decision merely would be advisory to the local health director, the state has invested directors with autonomy with regard to personnel decisions by permitting them, as plaintiff states, to make the "final" decision on personnel matters. Thus, plaintiff contends that defendants acted as agents of the county, not the state, in dismissing him.

The court rejects plaintiff's argument. In dismissing employees, defendants are subject to the state's elaborate personnel procedures outlined in Chapter 126. Simply making the appellate decision of the ...