Hairston v. Barnes, 1:15CV1100

Decision Date15 March 2019
Docket Number1:15CV1100
CourtU.S. District Court — Middle District of North Carolina
PartiesTERRY HAIRSTON, II, Plaintiff, v. SHERIFF BJ BARNES, in his official and personal capacities, Defendant.



OSTEEN, JR., District Judge

Currently before this court is Defendant BJ Barnes' motion for summary judgment. (Doc. 50.) Defendant asks this court to enter summary judgment on his behalf on Plaintiff Terry Hairston's claims for race-based employment discrimination, retaliation, and failure to accommodate a medical disability. Defendant has also moved to seal, (Doc. 51), the exhibits to his motion to summary judgment, and Plaintiff has moved to seal, (Doc. 56), certain exhibits to his response opposing summary judgment. For the reasons that follow, this court finds that Defendant's motion for summary judgment should be granted, Defendant's motion to seal should be granted, and Plaintiff's motion to seal should be granted in part and denied in part.


Plaintiff was employed by the Guilford County Sheriff's Office from April 1994 until November 2016. (Fourth Amended Complaint ("Fourth Am. Compl.") (Doc. 42) ¶¶ 39, 70.) The Sheriff's Office is divided into detention and patrol branches; the detention branch deals primarily with prison inmates and is generally considered inferior in pay and benefits to the patrol branch. (Id. ¶ 9.) Plaintiff describes a long history of allegedly discriminatory treatment by the Sheriff's Office against black employees, including a systematic practice of failing to promote black officers in the patrol branch. (See id. ¶¶ 10-11.) Defendant admits that certain of the underlying events occurred but does not agree that any of the acts constitute discrimination. (See generally (Doc. 43).) Plaintiff further alleges, by reference to specific examples, that white officers generally receive more favorable job opportunities and more lenient discipline than similarly-situated black officers. (See Fourth Am. Compl. (Doc. 42) ¶¶ 12-38.)

Plaintiff consistently received stellar performance reviews and, in 2002, was promoted to sergeant within the detention branch. (Id. ¶¶ 40-41.) In October 2012, Plaintiff applied for a Transportation Sergeant position with an 8 a.m. to 5 p.m. schedule instead of twelve-hour rotating shifts. (Id. ¶ 42.)This was a lateral move to another sergeant position with different job responsibilities. (Excerpts from Pl.'s 11/16/2017 Deposition ("Pl.'s Dep. B") (Doc. 58-2) at 14.)1 Plaintiff was not selected for the position, which was instead given to a white Master Corporal who had worked in the Transportation Department; the white corporal was selected for the job in January 2013. (Fourth Am. Compl. (Doc. 42) ¶ 46; Pl.'s Dep. B (Doc. 58-2) at 16.) Shortly after not receiving the Transportation Sergeant position, in the spring of 2013, Plaintiff was promoted to Shift Lieutenant within the detention branch. (Pl.'s Dep. B (Doc. 58-2) at 16-17.) Plaintiff filed a discrimination charge with the Equal Employment Opportunity Commission ("EEOC") in April 2015. (Fourth Am. Compl. (Doc. 42) ¶ 47.)

Following his first EEOC filing, Plaintiff alleges that Defendant retaliated against him in several ways. First, time was removed from Plaintiff's work entries, lowering his pay, and the secretary responsible for monitoring time cards told Plaintiff she was instructed by Human Resources ("HR") to remove this time. (Id. ¶ 48.) Second, Plaintiff alleges that his filesand emails were monitored. (Id. ¶ 49.) Third, Plaintiff received a formal disciplinary letter and was placed on probation in June 2015 for improperly checking prisoner's cells, which Plaintiff contends was a disproportionate response to this violation. (Id. ¶ 50; Pl.'s Dep. B (Doc. 58-2) at 23.) Fourth, Plaintiff was allegedly disparaged by Defendant over email and during an in-person meeting in October 2015. (Fourth Am. Compl. (Doc. 42) ¶¶ 51-52.) After Plaintiff raised concerns that detention officers were treated less favorably, Plaintiff alleges that Defendant made statements to him during a department-wide meeting that alluded to this litigation and referenced a willingness to "bow up in the sand and . . . fight . . . [by] instruct[ing Defendant's] attorneys to go to trial." (Pl.'s Dep. B (Doc. 58-2) at 51-52.) Due to these events, Plaintiff filed an EEOC retaliation charge in February 2016. (Fourth Am. Compl. (Doc. 42) ¶ 53.)

In April 2016, Plaintiff alleges that he was forbidden from wearing his department-issued toboggan (a wool hat) inside the office, contrary to Sheriff's Office policy. (Id. ¶¶ 54-56.) Plaintiff produced a doctor's note and was subsequently permitted to wear the hat. (Id. ¶ 57.) In May 2016, Plaintiff informally complained within the department that terminated black officers were treated more harshly than terminated whiteofficers. (Id. ¶ 58.) The day after making this observation, Plaintiff's parking fob and key card did not function properly and Plaintiff was forced to enter the Sheriff's Office through the visitor entrance. (Id. ¶¶ 59-61; Pl.'s Dep. B (Doc. 58-2) at 38.) In June 2016, Plaintiff's paycheck omitted holiday pay amounts for Memorial Day and Plaintiff had to alert Human Resources ("HR") to fix the issue. (Fourth Am. Compl. (Doc. 42) ¶ 62.)

Plaintiff was diagnosed with anxiety disorder in July 2016 and took paid medical leave between July 29, 2016 and October 24, 2016. (Id. ¶¶ 63-65.) As the expiration date of Plaintiff's paid leave neared, Plaintiff asked co-workers to donate their leave time to him. (Id. ¶ 66.) Plaintiff later learned that some of the potential donors had been approached and investigated by Internal Affairs for violating department policy. (Id.; Pl.'s Dep. B (Doc. 58-2) at 44-45.) Plaintiff was permitted to receive and use the maximum number of donated hours. (Pl.'s Dep. B (Doc. 58-2) at 42.) Plaintiff then requested additional unpaid leave, which was granted through November 4, 2016. (Excerpts from Pl.'s 11/16/2017 Deposition ("Pl.'s Dep. A") (Doc. 53-1) at 25.) Plaintiff requested further leave through December 20, 2016, but the Sheriff's Office deniedthis request and terminated Plaintiff on November 4, 2016. (Fourth Am. Compl. (Doc. 42) ¶¶ 67, 70; Doc. 53-3 at 6.)


Plaintiff received an EEOC right-to-sue letter on September 30, 2015, (Doc. 10-2), and timely filed his initial complaint in this court on December 29, 2015. (Doc. 1.) Plaintiff subsequently amended his complaint four times. The current version is the Fourth Amended Complaint, (Fourth Am. Compl. (Doc. 42)), which lists only Barnes as Defendant.2

Defendant filed an answer to the complaint, (Doc. 43), and subsequently moved for summary judgment, (Doc. 50). Defendant filed a memorandum in support of his motion for summary judgment. (See Def.'s Mem. of Law in Supp. of Mot. for Summ. J.("Def.'s Mem.") (Doc. 54).) Defendant simultaneously moved to seal certain exhibits attached to his motion for summary judgment, (Doc. 51), and submitted a brief in support of that motion, (Doc. 52). Plaintiff responded opposing the motion for summary judgment. (See Pl.'s Resp. Br. in Opp'n to Def.'s Mot. for Summ. J. ("Pl.'s Resp. Br.") (Doc. 55).) Plaintiff also moved to seal exhibits attached to his response, (Doc. 56), and submitted a brief in support of that motion, (Doc. 57). Defendant then replied in support of his motion for summary judgment. (See Doc. 60.)


Plaintiff brings his employment discrimination claim in part under Title VII of the Civil Rights Act of 1964. The enforcement provisions of Title VII state that "[a] charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred." 42 U.S.C. § 2000e-5(e)(1); see also Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109-10 (2002) (stating that "a litigant has up to 180 or 300 days after the unlawful practice happened to file a charge with the EEOC," depending on whether the litigant also files their complaint with a state agency). "Each discrete discriminatory act starts a new clock for filing charges alleging that act." Morgan, 536 U.S. at 113. "[A] timelycharge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling." Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 392 (1982) (footnote omitted).

Title VII further requires that a plaintiff "exhaust her administrative remedies by filing a charge of discrimination with the EEOC" before bringing suit. Hentosh v. Old Dominion Univ., 767 F.3d 413, 416 (4th Cir. 2014). The failure to do so means that a federal court lacks subject matter jurisdiction over the claim. Id. When "the claims raised under Title VII exceed the scope of the EEOC charge and any charges that would naturally have arisen from an investigation thereof, they are procedurally barred" because the plaintiff has failed to exhaust remedies as to those claims. Dennis v. Cty. of Fairfax, 55 F.3d 151, 156 (4th Cir. 1995). The one exception to this general rule is that new retaliation claims may be brought in federal court in the first instance even if not specifically asserted in an EEOC charge, when based on a good faith belief that the alleged retaliatory conduct relates to the original charge. See Nealon v. Stone, 958 F.2d 584, 590 (4th Cir. 1992).

While Defendant does not contest the timeliness of Plaintiff's claims or whether Plaintiff has exhausted hisadministrative remedies, this court will briefly examine these threshold requirements. Plaintiff's discrimination claim is based, in part, on the alleged adverse employment action of Defendant's failure to promote Plaintiff to the Transportation Sergeant position. This act occurred in January 2013, when a white Master Corporal was selected for the position instead. (Fourth Am. Compl. ...

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