Morrison-Tiffin v. Hampton

• Decision Date: 03 January 1995
• Docket Number: No. 9414SC12,MORRISON-TIFFIN,9414SC12
• Parties: Susan Rose, and Charles Mark Tiffin, Plaintiffs, v. Trevor HAMPTON, in his personal and official capacity as Chief, City of Durham Police Department; Wiley Davis, in his personal and official capacity as Career Development Manager of the Durham Police Department; Orville Powell, in his personal and official capacity as Durham City Manager; Jackie McNeil, in his personal and official capacity as Police Chief of the City of Durham Police Department; Unknown City of Durham Employees in their personal and official capacities; and the City of Durham Inc.
• Court: North Carolina Court of Appeals

Page 650

451 S.E.2d 650

117 N.C.App. 494

Susan Rose MORRISON-TIFFIN, and Charles Mark Tiffin, Plaintiffs, v. Trevor HAMPTON, in his personal and official capacity as Chief, City of Durham Police Department; Wiley Davis, in his personal and official capacity as Career Development Manager of the Durham Police Department; Orville Powell, in his personal and official capacity as Durham City Manager Jackie McNeil, in his personal and official capacity as Police Chief of the City of Durham Police Department Unknown City of Durham Employees in their personal and official capacities; and the City of Durham Inc.

No. 9414SC12.

Court of Appeals of North Carolina.

Jan. 3, 1995.

Alan McSurely, Chapel Hill, for plaintiffs-appellants.

Newsom, Graham, Hedrick, Kennon & Cheek, P.A. by William P. Daniell and Joel M. Craig, Durham, for defendants-appellees.

LEWIS, Judge.

Plaintiffs commenced this action for alleged violations of their constitutional rights under 42 U.S.C. § 1983, intentional infliction of emotional distress, civil conspiracy, and negligent hiring and retention. From entry of summary judgment for all defendants on all claims, plaintiffs appeal.

Plaintiff Charles Mark Tiffin (hereinafter "Tiffin") began working as a Durham Police Officer in 1979. Plaintiff Susan Rose Morrison-Tiffin (hereinafter "Morrison-Tiffin") began working as a Durham Police Officer in 1980. In 1982, Morrison-Tiffin resigned from the police department, but returned a few months later. That same year, plaintiffs married. Tiffin was promoted to corporal in 1982 and to sergeant in 1987. Morrison-Tiffin was promoted to corporal in 1987.

Defendant Orville Powell has been the Durham City Manager since 1983. Defendant Trevor Hampton was Durham's Chief of Police from 1988 until 1992. Defendant Jackie McNeil succeeded Hampton, becoming acting Chief of Police in 1992 and Chief of Police in 1993. Defendant Wiley Davis was the civilian Career Development Manager of the police department from 1988 until 1992.

In April 1989, Morrison-Tiffin applied for a posted sergeant's position. She failed to score within the top 40% after oral interviews and was therefore not eligible to be placed in the sergeant eligibility pool from 1989 to 1991. Later that month, Tiffin placed first on a lieutenant promotion list. Also in April, Morrison-Tiffin filed a charge of gender discrimination regarding the sergeant promotional process with the Equal Employment Opportunity Commission (hereinafter "EEOC"). The EEOC investigated and dismissed the charge. In January and February 1990, Morrison-Tiffin filed additional EEOC charges, when she was denied a transfer to the Traffic Accident Control Team and when she received a letter of reprimand from a captain concerning the filing of a homicide report. The EEOC investigated the charges and dismissed them for lack of evidence of discrimination or retaliation.

Tiffin also filed a series of EEOC charges with respect to his own employment. The EEOC found merit in one of the charges. That charge involved an incident where Tiffin was alleged to have improperly supervised another officer who used excessive force in effecting an arrest. A Police Board of Inquiry found that Tiffin had failed to properly supervise the officer and had given conflicting testimony during the investigation. The Board recommended that Tiffin be suspended for ten days and demoted. When Tiffin refused to sign a statement admitting that his testimony was inconsistent, Chief Hampton terminated him. Tiffin filed the EEOC claim and pursued the city's grievance procedure. The matter was resolved when Tiffin agreed to sign a letter of agreement and reconciliation admitting that his testimony was inconsistent. He was then reinstated and given a 30-day leave without pay.

During 1990 and 1991 Morrison-Tiffin applied for other positions at the police department but was not selected. Other women were selected for many of these positions. In 1993, Morrison-Tiffin was promoted to sergeant and Tiffin was promoted to lieutenant.

Preliminarily, we note that plaintiffs have failed to comply with Rule 28(b)(4) of the Rules of Appellate Procedure, which provides that an appellant's brief shall contain

[a] full and complete statement of the facts. This should be a non-argumentative summary of all material facts underlying the matter in controversy which are necessary to understand all questions presented for review, supported by references to pages in the transcript of proceedings, the record on appeal, or exhibits, as the case may be.

N.C.R.App.P. 28(b)(4) (1994). Plaintiffs' brief contains no statement of the facts. Instead, the brief states that "[t]he facts will be inserted throughout the argument below." Thus, the brief does not contain a "non-argumentative summary of all material facts." Plaintiffs' appeal is subject to dismissal for failure to comply with the requirements of Rule 28. See Northwood Homeowners Ass'n, Inc. v. Town of Chapel Hill, 112 N.C.App. 630, 436 S.E.2d 282 (1993). However, in our discretion we will review the merits of the appeal.

I. Statute of Limitations

Plaintiffs' complaint alleges that incidents from 1980 until the time of the filing of the complaint amounted to sexual harassment and discrimination, and that these acts violated her constitutional rights under 42 U.S.C. § 1983 and amounted to intentional infliction of emotional distress. The statute of limitations applicable to section 1983 actions is the state's statute governing personal injury actions. Wilson v. Garcia, 471 U.S. 261, 279, 105 S.Ct. 1938, 1948-49, 85 L.Ed.2d 254, 269 (1985). The applicable North Carolina statute is N.C.G.S. § 1-52 (Cum.Supp.1994), a three-year statute of limitations. Gentile v. Town of Kure Beach, 91 N.C.App. 236, 240, 371 S.E.2d 302, 305 (1988). The statute of limitations for intentional infliction of emotional distress is also three years. Waddle v. Sparks, 331 N.C. 73, 85, 414 S.E.2d 22, 28 (1992). Plaintiffs filed their complaint 13 December 1991. Accordingly, those events occurring before 13 December 1988 may not form the basis of plaintiffs' claims for relief. Furthermore, we find no evidence to support the application of the "continuing wrong" doctrine. See Faulkenbury v. Teachers' & State Employees' Retirement Sys., 108 N.C.App. 357, 424 S.E.2d 420, aff'd per curiam, 335 N.C. 158, 436 S.E.2d 821 (1993). And finally, we note that of the individual defendants, only Powell, the City Manager, was even at his job before 1988.

II. Section 1983

Claims--Individual Capacities

We now address the propriety of summary judgment as to plaintiffs' section 1983 claims. First, plaintiffs claim that the acts of defendants deprived them of their Fourteenth Amendment rights of equal protection. The individual defendants have asserted the defense of qualified immunity.

A. Equal Protection

1. Morrison-Tiffin

The equal protection clause of the Fourteenth Amendment confers a constitutional right to be free from gender discrimination that is not substantially related to important government objectives. Beardsley v. Webb, 30 F.3d 524, 529 (4th Cir.1994) (citing Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979)). This right is broad enough to prohibit state officials from engaging in intentional conduct designed to impede a person's career advancement because of gender. Lindsey v. Shalmy, 29 F.3d 1382, 1385 (9th Cir.1994). It is well settled that a section 1983 equal protection violation requires a showing of intentional discrimination. Dugan v. Ball State Univ., 815 F.2d 1132, 1135 n. 1 (7th Cir.1987).

A defendant sued under section 1983 in his individual capacity may assert the defense of qualified immunity. Corum v. University of North Carolina, 330 N.C. 761, 772, 413 S.E.2d 276, 283, cert. denied, - "506 U.S. 985, 113 S.Ct. 493, 121 L.Ed.2d 431 (1992). The test for qualified immunity was set forth in Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396, 410 (1982): "[G]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Although this standard is an objective one, the inquiry must become subjective, in part, where the official's motive or intent is an essential element of the constitutional right allegedly violated. Corum, 330 N.C. at 772-73, 413 S.E.2d at 284. Thus,

where the defendant's subjective intent is an element of the plaintiff's claim and the defendant has moved for summary judgment based on a showing of the objective reasonableness of his actions, the plaintiff may avoid summary judgment only by pointing to specific evidence that the officials' [sic] actions were improperly motivated. Pueblo Neighborhood Health Ctrs., Inc. v. Losavio, 847 F.2d 642, 649 (10th Cir.1988) (emphasis supplied).

Id. at 774, 413 S.E.2d at 285. Mere conclusory assertions of discriminatory intent embodied in affidavits or deposition testimony are not sufficient to avert summary judgment. Lindsey, 29 F.3d at 1385. The court must satisfy itself that there is sufficient direct or circumstantial evidence of intent to create a genuine issue of fact for the jury, before it can deny summary judgment on the ground of immunity. Id.

Here Morrison-Tiffin has failed to point to specific evidence that the individual defendants were motivated by the improper desire to discriminate against her because she is a woman. With respect to the 1989 sergeant promotional process, Morrison-Tiffin was one of seventy-one applicants, about seven of whom were females, who took the initial written exam. Those applicants who scored in the top half were given oral interviews. Morrison-Tiffin scored eleventh out of the seventy-one applicants, and, along with three other females, made it to the oral interview stage. The oral interviews were conducted by a...