Lorbacher v. Housing Authority of City of Raleigh

• Decision Date: 18 November 1997
• Docket Number: No. COA97-129,COA97-129
• Parties: Rodney Alton LORBACHER, Plaintiff, v. HOUSING AUTHORITY OF the CITY OF RALEIGH, Floyd T. Carter, former Executive Director, Paul H. Messenger, current Executive Director and Horace C. Brantley III, former Deputy Executive Director, Defendants.
• Court: North Carolina Court of Appeals

Page 74

493 S.E.2d 74

127 N.C.App. 663

Rodney Alton LORBACHER, Plaintiff, v. HOUSING AUTHORITY OF the CITY OF RALEIGH, Floyd T. Carter,

former Executive Director, Paul H. Messenger, current

Executive Director and Horace C. Brantley III, former Deputy

Executive Director, Defendants.

No. COA97-129.

Court of Appeals of North Carolina.

Nov. 18, 1997.

William E. Moore, Jr., Gastonia, and Marvin Schiller, Raleigh, for plaintiff-appellant.

Cranfill, Sumner & Hartzog, L.L.P. by Raymond M. Davis, Raleigh, for defendant-appellee.

ARNOLD, Chief Judge.

Plaintiff appeals from the trial court's order granting defendants' motion for summary judgment on plaintiff's 42 U.S.C. § 1983 claim for violation of his First Amendment rights, his state wrongful discharge claim, and claims for punitive damages against defendants Carter and Messenger. He also assigns error to the trial court's denial of his motion to reconsider or for relief from summary judgment. Finally, plaintiff appeals from the partial grant of defendants' motion to dismiss on his Fourteenth Amendment Due Process claim, state constitutional Law of the Land and Freedom of Speech claims, and intentional and negligent infliction of emotional distress claims.

Summary judgment is appropriate when then there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. N.C.Gen.Stat. § 1A-1, Rule 56(c) (1990); Gregory v. Perdue, Inc., 47 N.C.App. 655, 656, 267 S.E.2d 584, 586 (1980). It is not the court's function to decide questions of fact when ruling on a motion for summary judgment; rather, the moving party must establish that there is an absence of a triable issue of fact. Moore v. Bryson, 11 N.C.App. 260, 262, 181 S.E.2d 113, 114 (1971) (citations omitted). All evidence must be considered in the light most favorable to the non-moving party. Burrow v. Westinghouse Electric Corp., 88 N.C.App. 347, 350, 363 S.E.2d 215, 217, disc. review denied, 322 N.C. 111, 367 S.E.2d 910 (1988) (citations omitted).

Plaintiff alleges that defendants deprived him of his First Amendment right to free speech in violation of 42 U.S.C. § 1983. The federal statute reads, in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

42 U.S.C. § 1983 (1994). The Housing Authority is a municipal corporation. Jackson v. Housing Authority of High Point, 316 N.C. 259, 341 S.E.2d 523 (1986). Although the language of § 1983 speaks in terms of "person," the United States Supreme Court holds that municipalities are "persons" for purposes of the statute. Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).

Although plaintiff also brought claims against Housing Authority officers under the statute, we need only consider the liability of the Housing Authority for the § 1983 claim. Municipal officers may be sued under § 1983 in their official or individual capacity. Hafer v. Melo, 502 U.S. 21, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991). A suit against a defendant in his/her official capacity is simply another way of pleading an action against the municipality itself. Monell, 436 U.S. 658, 690 n. 55, 98 S.Ct. 2018, 2035 n. 55, 56 L.Ed.2d 611, 635 n. 55. Officials who are sued in their individual capacity are personally liable for damages, although a defense of qualified immunity may be available to them. Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982).

In the present case, the complaint does not identify whether defendants Carter and Messenger are being sued in their individual or official capacities; however, the caption of the complaint, and the allegations made therein, refer to them by both their names and job titles. We presume that plaintiff is suing these individuals in their official capacity as officers of the Housing Authority. See Kolar v. County of Sangamon of State of Ill., 756 F.2d 564, 568 (7th Cir.1985). Therefore, we need only consider the liability of the Housing Authority with respect to this claim.

Although a municipality may be sued under the statute, it may not be held liable solely on the basis of respondeat superior; rather, liability exists only if the entity itself is responsible for the violation. Pembaur v. City of Cincinnati, 475 U.S. 469, 478, 106 S.Ct. 1292, 1297-98, 89 L.Ed.2d 452, 462 (1986). The Housing Authority only can be held liable for the actions of its employees if it officially ordered or sanctioned the conduct, the employees responsible for plaintiff's demotion and discharge had final policy-making authority, or the action was taken pursuant to a municipal policy, practice or custom. Id. at 483 n. 12, 106 S.Ct. at 1300 n. 12, 89 L.Ed.2d at 465 n. 12.

Plaintiff neither alleges nor brings forth any evidence of the Housing Authority having a policy or practice of discharging employees for the exercise of First Amendment rights. Instead, plaintiff alleges that defendants Carter and Messenger were delegated final policy-making authority. It is on this theory of municipal liability alone which plaintiff rests his case. In order that the action properly may be considered a municipal policy, the employee must possess authority to establish "final policy with respect to the subject matter in question." Id. at 483, 106 S.Ct. at 1300, 89 L.Ed.2d at 465. The determination of whether a specific official has final policy-making authority is governed by state or local law. City of St. Louis v. Praprotnik, 485 U.S. 112, 125, 108 S.Ct. 915, 925, 99 L.Ed.2d 107, 119 (1988).

The Housing Authority handbook states that all personnel decisions regarding demotions and discharges are vested in the Executive Director and those designated to act on his/her behalf. The fact that an official has some discretion in the exercise of his/her functions, in and of itself, does not give rise to municipal liability. Pembaur, 475 U.S. at 481-82, 106 S.Ct. at 1299-1300, 89 L.Ed.2d at 464. Although the executive director is a final decision-maker in matters of promotions and discharges, he is not the final policy-maker with regard to substantive personnel matters. The Housing Authority Board established personnel policies and adopted the employee handbook in question. Federal courts draw a line between the power to implement policy and the power to make policy. An official's ability to discharge an employee does not necessarily equate to the ability to create substantive policy. See Greensboro Professional Fire Fighters Ass'n, Local 3157 v. City of Greensboro, 64 F.3d 962, 966 (4th Cir.1995) ("The discretion to hire and fire does not necessarily include responsibility for establishing related policy."). Plaintiff has failed to come forward with any evidence to support a viable theory of liability. Indeed, plaintiff failed to even address this element of a § 1983 claim in his brief. Accordingly, we conclude that summary judgment for defendant Housing Authority was properly granted.

At this point, we also consider plaintiff's argument that in light of the introduction of new evidence, the trial court erred in denying his motion to reconsider or for relief from judgment. The standard of review on appeal from the trial court's denial of such a motion is whether the trial court abused its discretion. Muse v. Charter Hospital of Winston-Salem, Inc., 117 N.C.App. 468, 481, 452 S.E.2d 589, affirmed per curiam, 342 N.C. 403, 464 S.E.2d 44 (1995). We conclude that the trial court did not abuse its discretion in this matter. The additional evidence failed to establish that the Housing Authority itself was responsible for the violation of plaintiff's constitutional rights.

Plaintiff also brought a state law cause of action against defendants for wrongful discharge. The trial court properly dismissed the claim against the individual defendants as they were not plaintiff's employers for the purposes of a wrongful discharge claim. See Sides v. Duke University, 74 N.C.App. 331, 343, 328 S.E.2d 818, 827, disc. review denied, 314 N.C. 331, 333 S.E.2d 490 (1985). With regard to the Housing Authority, it argues that this claim against it fails for the same reasons that plaintiff's First Amendment claim fails. We disagree. Plaintiff brought suit against defendant Housing Authority for violation of his First Amendment rights pursuant to 42 U.S.C. § 1983. The requirements for municipal liability under § 1983 are specifically driven by the text and legislative history of this federal statute. Plaintiff's wrongful discharge claim is not a federal, but a state cause of action. The requirement of a policy, practice or custom leading to municipal liability is therefore inapplicable in this area.

While respondeat superior is not a proper basis for liability under a § 1983 claim, a state law claim for wrongful discharge may be based on the agency relationship between an entity and its officers or employees. See id. (recognizing an enforceable claim against the defendant when plaintiff alleged that the individuals who discharged her were acting as agents of the defendant). In his complaint, plaintiff alleges that the individual defendants were acting in the course and scope of their employment with the Housing Authority when they discharged him.

Having decided that the Housing Authority can be sued for wrongful discharge, we turn now to the merits of the claim itself. As a general rule in North Carolina, an employee-at-will has no claim for wrongful discharge. Walker v. Westinghouse Electric Corp., 77 N.C.App. 253, 260, 335 S.E.2d 79, 84 (1985), disc. review denied, 315 N.C. 597, 341...