Webb v. Nc Dept. of Crime Control & Public Safety, 7:08-CV-90-D.

• Citation: 658 F.Supp.2d 700
• Decision Date: 11 September 2009
• Docket Number: No. 7:08-CV-90-D.,7:08-CV-90-D.
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: Lorn Glenn WEBB, Plaintiff, v. NORTH CAROLINA DEPARTMENT OF CRIME CONTROL AND PUBLIC SAFETY, ALCOHOL LAW ENFORCEMENT DIVISION, Defendant.

658 F.Supp.2d 700

Lorn Glenn WEBB, Plaintiff, v. NORTH CAROLINA DEPARTMENT OF CRIME CONTROL AND PUBLIC SAFETY, ALCOHOL LAW ENFORCEMENT DIVISION, Defendant.

No. 7:08-CV-90-D.

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

September 11, 2009.

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Julius LeVonne Chambers, Ferguson Stein Chambers Gresham and Sumter, P.A., Charlotte, NC, for Plaintiff.

Hal F. Askins, N.C. Dept. of Justice, Raleigh, NC, for Defendant.

ORDER

JAMES C. DEVER III, District Judge.

Lorn Glenn Webb ("plaintiff" or "Webb") is a Native American who contends that the North Carolina Department of Crime Control and Public Safety, Alcohol Law Enforcement Division ("defendant" or "ALE") violated Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 1981, and 42 U.S.C. § 1983. Webb primarily complains about ALE's decision to suspend him with pay and benefits for approximately two months in 2007, while it investigated his role in an investigation of law enforcement corruption known as Operation Tarnished Badge. At the end of ALE's investigation, ALE could not determine that Webb violated the law or ALE policy and reinstated him with no loss in pay, benefits, or seniority. Webb now attacks his suspension and reinstatement and claims that ALE suspended him based on his race and in retaliation for exercising his rights under Title VII and section 1981 in 2004. Webb also attacks various other employment decisions. ALE denies any illegal discrimination and seeks summary judgment [D.E. 14], which Webb opposes [D.E. 16]. As explained below ALE's motion for summary judgment is granted.

I.

On May 31, 1997, ALE hired Webb as an Agent I and assigned him to the Fayetteville district. Webb Dep. 6-7. As an Agent I with ALE, Webb was a law enforcement officer responsible for enforcing North Carolina laws concerning alcohol. In 1999, ALE promoted Webb to Agent II. Id. at 7.

In 2000, Webb resigned from ALE to accept a position with the North Carolina State Highway Patrol ("NCSHP"). Id. at 10. Shortly thereafter, Webb rescinded his resignation and ALE rehired him. Id. On February 1, 2001, Webb resigned from ALE (again) to pursue employment (again) at NCSHP. Id. at 9-10. However, Webb dropped out during NCSHP training, and ALE (again) rehired him. Id. at 11.

In 2002, Webb applied for promotion to assistant supervisor. Id. at 75-77. In order to be eligible for promotion, a candidate had to score 60 on a written exam. Robertson Aff. ¶ 5. Webb passed the written exam but, due to his low passing score, was placed sixteenth on the promotional list Id. ¶ 6. Because of his place on the promotional list, ALE did not promote Webb to one of the few assistant supervisor positions. Id.

In December 2003, Webb requested a transfer from Fayetteville to Wilmington due to issues that Webb had with his then-supervisor Bob Stocks. Webb Dep. 25-26. Webb's complaints included that Stocks was racially biased against Webb. See id. Deputy Director John Simmons contacted Webb in December 2003 or January 2004 to discuss the allegations. See id. at 26-27. Shortly thereafter, ALE transferred Stocks to Raleigh, assigned Stocks to Professional Standards (i.e., Internal Affairs), and demoted Stocks from supervisor to assistant supervisor. See id. at 49; Robertson Dep. 19, Exs. 1, 7; Battle Dep. 42. After ALE transferred Stocks to Raleigh, Webb withdrew his transfer request. Webb Dep. 49-50; see Webb Aff. ¶ 12.

In 2004, Webb requested promotion to Agent III. Battle Dep. 26, 29. Webb's supervisor, Herbert Battle, did not immediately recommend Webb for promotion in August 2004, because Battle (who began supervising Webb in February 2004) did not have sufficient information concerning Webb's work to recommend a promotion. Id. at 36; see Robertson Dep., Ex. 7. At the time, Battle knew that Webb's prior supervisor and assistant supervisor did not recommend Webb for promotion. Battle Dep. 29-30; cf. Robertson Aff. ¶ 8 (discussing promotion eligibility requirements). Nonetheless, after supervising Webb for approximately six more months, Battle recommended Webb for promotion to Agent III, and, in February 2005, ALE promoted Webb. See Battle Dep. 58; Webb Dep. 18-19.

In 2005, Webb again applied for promotion to assistant supervisor. Webb Dep. 77. Webb took the promotion exam, but failed the exam. Id. at 78; see Robertson Aff. ¶ 11 (noting that ALE policy stated that "a failing score shall end the candidate's eligibility for promotion"). Webb did not challenge the exam results. See Webb Dep. 79-81.

In 2005, Webb requested training in Spanish and driving instruction. See Webb Aff. ¶ 16; Webb Dep. 21-25, 159. ALE did not permit Webb to attend either training because he already held several certifications. See Webb Aff. ¶ 16; Webb Dep. 22-23. Attending trainings does not affect an ALE agent's pay, benefits, or rank. See Robertson Aff. ¶ 16.

In June 2006, Webb's supervisor, Alan Fields, conducted a career-banding assessment of Webb. See Fields Aff. ¶ 4, Ex. 1; Domico Aff. ¶ 3 (explaining process). The career-banding system classifies and standardizes employees' job types. See Fields Aff., Ex. 1. ALE conducted the same career-banding assessment on all similarly situated employees, and the career-banding assessment did not impact Webb's salary, benefits, or job duties. See Domico Aff. ¶ 4; Chandler Aff. ¶ 3.

On July 11, 2006, Webb resigned from ALE (again) to pursue employment (again) with NCSHP. See Webb Dep. 11, 50-53. Specifically, Webb attempted to convince NCSHP to permit him to transfer laterally from ALE to NCSHP, even though no one within ALE or NCSHP told him that such a transfer was permitted. See id. at 13-15, 51. After applying to transfer, NCSHP advised Webb that he could not transfer laterally from ALE to NCSHP. Id. at 51. Webb then quit NCSHP training and sought to return to ALE. Id. at 52-53.

Webb met with ALE Director Robertson and asked to be rehired. See id. at 53-55. At the direction of Director Robertson, ALE rehired Webb as an Agent III at the same salary that he was making when he resigned and assigned Webb to Raleigh. See id. at 53-55; Robertson Aff. ¶ 14. Shortly after being rehired, Webb asked to transfer to Fayetteville, but ALE denied the request See Webb Dep. 56. Nonetheless, in January 2007, ALE approved Webb's request to live outside the district in which he worked. See id. at 59. Shortly thereafter, Webb asked to transfer from Raleigh to Wilmington, which ALE approved. Id. at 58.

On February 8, 2007, Director Robertson received a telephone call from an anonymous citizen that three law enforcement officers (including Webb) were implicated in a joint state-federal investigation called "Operation Tarnished Badge." See Robertson Aff. ¶ 13; Robertson Dep. 20-21. Operation Tarnished Badge is a highly publicized, wide-ranging probe of corrupt law enforcement officers in Robeson County, North Carolina. The investigation has resulted in over twenty federal criminal convictions of state law enforcement officers, including the conviction of former Robeson County Sheriff Glenn Maynor and nearly his entire command structure. See United States v. Maynor, 310 Fed.Appx. 595, 596-98 (4th Cir.2009) (per curiam) (unpublished). The crimes have involved a variety of corrupt activities, including extorting money from alleged drug dealers, kidnapping, money laundering, committing perjury in front of a federal grand jury, conspiracy, and satellite television piracy.¹ After receiving the anonymous complaint, Director Robertson contacted North Carolina State Bureau of Investigation ("SBI") Director Robin Pendergraft. Director Pendergraft told Director Robertson that Webb was a subject of the investigation. See Robertson Aff. ¶ 13; Robertson Dep. 20-21. Director Pendergraft told Director Robertson that the allegation concerning Webb involved the alleged theft of a satellite card in order to obtain satellite television. See Robertson Dep. 20-23.

Director Robertson concluded that if the allegation were true, Webb's conduct (at a minimum) violated ALE policy. See id. at 21-22: Robertson Aff. ¶ 13. Thus, Director Robertson filed an internal personnel complaint against Webb. Robertson Dep. 21. On March 1, 2007, ALE advised Webb that he was the subject of an internal investigation, and ALE gave Webb a copy of the complaint Robertson Aff. ¶ 13. On March 7, 2007, Director Robertson placed Webb on administrative leave with pay and benefits for thirty days. Id. Director Robertson then asked Bob Stocks, who by this time had become a supervisor in ALE's Professional Standards, to conduct an internal investigation concerning Webb's alleged theft of a satellite card. Id. Because Director Robertson anticipated that the Operation Tarnished Badge investigation would complicate Stocks' ability to investigate Webb, Director Robertson sought and received approval from Crime Control and Public Safety Secretary Brian Beatty and the Office of State Personnel to extend Webb's suspension with pay and benefits until May 4, 2007. Id.

The ongoing criminal investigation did hamper Stocks' internal investigation. See Robertson Dep. 21-23, 29. Webb denied stealing a satellite card. As of early May 2007, Stocks was not able to conclude that Webb stole a satellite card or otherwise violated ALE policy. See Robertson Aff. ¶ 13. On May 3, 2007, Director Robertson reinstated Webb with no loss in pay, benefits, or seniority. See Webb Dep. 146; Robertson Aff. ¶ 13; Robertson Dep. 22. Webb resumed his duties as an Agent in with ALE. See Webb Dep. 146; Robertson Aff. ¶ 13.

On May 29, 2007, Webb filed a charge of discrimination with the EEOC. He alleged race discrimination and retaliation. In his EEOC charge, Webb wrote:

I. I filed a complaint of race discrimination against a former supervisor [Bob Stocks] and as a result he was demoted in 2004. On or around March 7, 2007[,] I was suspended with pay for approx[imately] two months. On...