THOMAS D. SCHROEDER, District Judge.
Plaintiff David Wray ("Wray") brings this action against his former employer, the City of Greensboro, North Carolina ("City"), and Mitchell Johnson ("Johnson"), the former City Manager, for race discrimination in violation of 42 U.S.C. § 1981. Before the court are motions by the City and Johnson for summary judgment (Docs. 44 & 47) and to strike certain documents filed in connection with Wray's response (Docs. 63 & 65). For the reasons set forth below, Defendants' motions for summary judgment will be granted, and the motions to strike will be denied as moot. Because this disposition resolves all claims over which the court has original jurisdiction, the court declines to exercise supplemental jurisdiction over the remaining claim of the complaint, and the action will be remanded to the State court of origin.
The facts, viewed in the light most favorable to Wray as the non-moving party, show the following:
Wray, a Caucasian, began a career as a police officer with the Greensboro Police Department ("GPD") in March 1981. In July 2003, he was promoted to Chief of Police, succeeding two African-American predecessors. (Doc. 54, Ex. 1 ¶¶ 3-4.) Johnson, who was then the Assistant City Manager, had led the search that ultimately resulted in Wray's selection. (Doc. 45, Ex. 2 ¶¶ 9-11.) Two years after Wray's promotion, Johnson became the City Manager. (
At the time of his appointment to Chief of Police, Wray was charged with cleaning up what the City regarded to be several areas of concern within the GPD, including discipline standards, department culture, and integrity, among other things. (Doc. 54, Ex. 1 ¶ 6.) To help accomplish this, Wray utilized the GPD's Special Intelligence Division ("SID"), which had been in existence for 25 years, to conduct certain internal investigations of officers thought to be engaged in improper conduct. (
In connection with the investigation of Hinson, a monitoring device (or tracker) was placed on the GPD vehicle Hinson used while on duty. (
On June 17, 2005, Wray held a press conference during which he announced that the GPD was involved in an ongoing criminal investigation that included the use of internal investigations conducted by the SID. (Doc. 45, Ex. 2 ¶ 20 & Ex. B.) Although Wray never mentioned Hinson by name in the initial press conference, the Greensboro News & Record (a local newspaper) reported that Wray responded to a question during a telephone interview about Hinson being under investigation by answering "[y]ou connect the dots." (Doc. 54, Ex. 1-A (stating that Wray's statement encouraged the newspaper to "read-between-the-lines").) Thus, based on the press conference and additional briefings by Wray, Johnson came to believe that Hinson was the subject of a federal investigation. (Doc. 45, Ex. 2 ¶ 20.)
The Hinson investigation was not the only GPD investigation to come under public scrutiny during June 2005. Also during that time rumors began to surface in the Greensboro community, and were reported on by the Greensboro News and Record, that the GPD had begun to focus internal investigations on African-American officers through the use of a "black book." (Doc. 48, Ex. B at 55-56.) This "black book" allegedly contained pictures of African-American GPD officers and was being used to target these officers, based on their race, for internal investigations. (Doc. 45, Ex. 2 ¶ 17;
During the time that the Hinson investigation and "black book" became the subject of public concern, the National Association for the Advancement of Colored People and the City council, along with the public, began expressing concerns to Johnson about possible racial animus within the GPD. (Doc. 54, Ex. 2 at 55 ("There were some people who were expressing great deals of concern about the police department, about Chief Wray.").) Further, several high-ranking GPD officers (who were predominantly Caucasian) sought and obtained a meeting with Johnson during this time. They reported administrative problems under Wray's leadership, including improper use of the SID, and alleged that Wray had both directed GPD officers to improperly change discipline recommendations and improperly discussed personnel information in violation of North Carolina law. (Doc. 45, Ex. 2 ¶¶ 26-27 & Ex. 3 at 76-77.)
The North Carolina State Bureau of Investigation ("SBI") also contacted and met with Johnson to express concerns about the way GPD's SID was handling investigations because, according to the representatives, Wray, with whom they had raised these concerns, was not taking them seriously. (Doc. 45, Ex. 2 ¶ 28.) Johnson also learned that the Guilford County District Attorney had requested that any future investigations of Hinson be referred to the SBI, although Wray did not notify Johnson of this fact. (
On July 27, 2005, Wray received a report from G.H. Kleinknecht, a law enforcement consultant, who had reviewed the GPD's policies and concluded that command and supervisory officers for administrative and criminal investigations were well-qualified and that the department performed at a high standard ("Kleinknecht Report"). (Doc. 57-2.) The report did recommend certain improvements. Wray also conducted his own internal investigation of "recent allegations that the Department has not been fair to some of its employees during the course of internal administrative investigations," including the investigation of Hinson. (Doc. 57-1 at 2.) On October 24, 2005, Wray sent Johnson a copy of his report, which found no impropriety. (
Sometime after Wray's June 2005 press conference, Johnson received a report that caused him to determine that, contrary to Wray's statements, Hinson was not the subject of a federal investigation but in fact had been cleared of any wrongdoing after investigations back in 2003 and 2004. (Doc. 45, Ex. 2 ¶ 21; Doc. 54, Ex. 2 at 65.) Because of this and the concerns that had been expressed about Wray's honesty and management of the GPD, and despite the previous internal investigative reports, in November 2005 Johnson asked the City to hire an outside firm, Risk Management Associates ("RMA"), to investigate Wray's leadership and whether Wray had been honest with City executives and the public about the investigation of Hinson. (Doc. 45, Ex. 2 ¶ 29 & Ex. E (describing the report's goal as determining whether "the police chief provide[ed] accurate and truthful information to the City Manager . . . and/or the public at large regarding the suspension of Lieutenant Hinson, the discovery of the tracking device, and other related matters").)
RMA's resulting report ("RMA Report") was delivered to the City by letter dated December 19, 2005. (Doc. 45, Ex. 2 ¶¶ 39-40 & Ex. E at 17.) The RMA Report concluded that "there is clear and convincing evidence" to support the conclusion that Wray did not provide truthful and accurate information regarding Hinson's suspension, the discovery of the tracking device, and related matters, that Hinson's suspension was "unnecessary and inappropriate," and that Wray may have violated at least two North Carolina criminal statutes in connection with a June 2005 union meeting. (
On January 6, 2006, Johnson met with Wray and informed him that he would be placed on administrative leave pending further investigation into issues raised by the RMA Report. (
Over the weekend of January 7-8, 2006, Johnson presented Wray with a choice: he could either resign and obtain certain post-employment benefits, or be terminated and lose the benefits. (Doc. 54, Ex. 1 ¶ 32.) On Monday, January 9, 2006, Wray submitted his resignation (Doc. 48, Ex. A at 11-12 & Ex. F) and Johnson named Bellamy to the position of Interim Chief until a permanent replacement could be found. (Doc. 45, Ex. 2 ¶ 47.)
The City subsequently engaged in a search for a new Chief of Police. Its search involved the use of three panels of community leaders, including a North Carolina Supreme Court Justice, and City employees to assess the candidates' expertise in law enforcement, experience in managing community relations, and leadership and managerial experience, using a scoring system that Wray does not challenge here. (Doc. 48, Ex. G at 8-10; Doc. 45, Ex. 2 ¶¶ 50-52) From a group of applicants, these three panels selected and evaluated four finalists, of different races, for the position of Chief of Police. (Doc. 45, Ex. 2 ¶ 54.) Overall, Bellamy was rated the best candidate for the position by the combined panels and was hired as the Chief of Police. (Doc. 48, Ex. B at 145-46 & Ex. A at 53.)
Wray now alleges that Johnson constructively discharged him in order to placate rising political pressure to put an African American into the position of Chief of Police because of Wray's perceived racism. As such, Wray alleges he was discriminated against on the basis of his race, Caucasian, and constructively discharged in violation of 42 U.S.C. § 1981.
The City and Johnson have both moved to strike various documents submitted by Wray in response to the motions for summary judgment. (
The court has reviewed this evidence and determined that, even considering it, summary judgment is still appropriate for Defendants. Accordingly, the motion to strike is rendered moot, and the court will turn to the summary judgment analysis.
Summary judgment is appropriate when there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a);
Wray alleges discrimination in violation of 42 U.S.C. § 1981. Section 1981 grants all persons within the jurisdiction of the United States "the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens." This statute has long been held to prohibit an employer from discriminating against an employee based on the employee's race.
Where suit is brought against a state actor, as with Wray's claims against the City and against Johnson in his official capacity, "[42 U.S.C.] § 1983 constitutes the exclusive federal remedy for violation of the rights guaranteed in § 1981."
To prevail on his claims, Wray must establish that, with regard to section 1981, his employer intentionally discriminated against him on the basis of his race, and, with regard to section 1983, that the City's decision-maker with final policy making-authority (Johnson) intentionally took actions against Wray based on his race.
Wray's first avenue for establishing his claim is to produce direct evidence of racial discrimination.
Wray points to several items as direct evidence to support his claim. However, none suffices.
Wray points first to his 2004 performance evaluation by Johnson. The evaluation, which was favorable, included a reference that Wray may be under increased scrutiny from the public on diversity issues because he was the first Caucasian Chief of Police in many years. (Doc. 54, Ex. 3 at 7 ("There have been a couple of areas that I hope we can continue to work on . . . [f]oremost are [Wray's] efforts as a leader and the efforts of his leadership teams . . . these actions need to be closely aligned with the organizations goals with regard to diversity. As the first Caucasian Chief in many years [Wray] and his leadership teams actions are observed to the minutest detail.");
Wray cites next to Johnson's deposition testimony to show that Johnson was under political pressure to "remove" Wray from office. (
Wray also attempts to rely on Johnson's alleged disregard of the Kleinknecht Report and Wray's internal investigation report, which Wray characterizes as finding no issues with his leadership. (
Wray next relies on a statement by City Attorney Linda Miles ("Miles") that she wanted an attorney to "[g]ive me what I need to get David Wray." (Doc. 56, Ex. 5 ¶ 6.) The statement does nothing to implicate Johnson, and, pursuant to section 1983, the City can only be liable for the acts of a person with final policy-making authority.
Finally, Wray points to the fact that during discovery the City was unable to provide certain emails from Johnson's and Miles's computers. Wray argues that the City and/or Johnson must have destroyed evidence and that Wray should benefit from an inference that the "missing" emails provide evidence of wrongdoing.
During discovery, the City was unable to find an email account for Miles, who had left employment with the City sometime in 2008. (Doc. 56, Ex. 13 at 54; Doc. 54, Ex. 2 at 10.) The City's Information Technology Director, Daryl Jones ("Jones"), testified that if the entire mailbox had been deleted (which he could not confirm was in fact the case), it could have been done by a system administrator. (Doc. 56, Ex. 13 at 54.) Additionally, the City was also unable to produce some emails from Johnson's account. The items that were unavailable include emails in Johnson's inbox folder prior to October 3, 2005, emails sent by Johnson before May 31, 2006, and emails deleted by Johnson prior to January 6, 2007.
In sum, the court has searched the record and can discern no evidence which would, without inference or presumption, establish that the City and/or Johnson took action against Wray because of his race. Additionally, during deposition, Wray himself was unable to articulate any direct evidence of discrimination. (Doc. 48, Ex. A at 18, 40, 41, 46, 54 (stating that Wray had not found any statement that would constitute direct or firsthand discrimination by Johnson and that there was no "smoking gun").) Indeed, Wray admitted that his theory of the case was based on the "context of [his] work experience" (
Consequently, the court turns to an analysis of the circumstantial evidence.
In discrimination cases under section 1981 where direct evidence is not available, the court will assess the claim using the same analytical framework applicable to claims of discrimination made under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e,
The parties cite different tests for Wray's prima facie case. Wray contends the elements in the present context are: (1) membership in a protected class; (2) satisfactory job performance; (3) adverse employment action; and (4) treatment different [from] that [of] similarly situated member[s] not of his protected class, citing
The court need not resolve this apparent inconsistency as to the proper standard in this case because, even assuming Wray can meet the applicable standard for a prima facie case, he cannot overcome the remainder of the burden-shifting approach.
If a plaintiff establishes a prima facie case of discrimination, the employer may articulate a legitimate, non-discriminatory reason for the alleged adverse employment action. The burden on a defendant is one of production, not persuasion.
Because Defendants have met their burden of production, the court turns to Wray's burden to establish pretext. To survive a summary judgment motion a plaintiff must develop some evidence on which a juror could reasonably base a finding that discrimination motivated the challenged employment action.
In this case, Wray attempts to establish pretext through the following facts (which overlap with Wray's proffered direct evidence of discrimination): that Johnson ignored the results of two investigations clearing Wray of wrongdoing; that Johnson participated in a "clandestine" meeting seeking to discredit Wray; that City Attorney Miles made a statement about "get[ing] David Wray;"
Wray's first contention is that Johnson ignored the results of two investigations that cleared Wray of wrongdoing. According to Wray, an internal staff investigation (led by him) and the Kleinknecht Report determined there was no evidence of management issues in the GPD. (
Pretext does not exist, moreover, simply because a prior investigation reported no wrongdoing. In
Wray next points to Chief Bellamy's testimony regarding a "clandestine" meeting as evidence of pretext. Specifically, Chief Bellamy testified that there was a "private meeting" involving himself, a member of the City Attorney's staff, Johnson, and an attorney from the Police Officers' Association. (Doc. 56, Ex. 6 at 18.) According to Chief Bellamy, the conversation at the meeting "centered around how people and employees and subordinates within the police department were being treated, about the morale of the police department." (
Wray next points to a Memorandum of Understanding ("MOU") with Hinson that was agreed to before Johnson placed Wray on administrative leave but signed January 10, 2006, the day following Wray's resignation. The MOU allowed Hinson, who Wray had placed on leave, to return to duty the following day. (Doc. 54, Ex. 1-K, Ex. 2 at 65, 68.) In the MOU, the City agreed that Hinson's personnel records would be purged of the investigations initiated against him and that his career advancement would not be negatively impacted thereby. (Doc. 54, Ex. 1-K.) Wray's theory seems to be that Hinson's return to duty the day after Wray's termination is evidence of some kind of plot by Johnson to remove Wray from office because of negative public opinion surrounding Wray's investigation of a black officer. But just because race is incidentally implicated in this scenario does not support the claim that the City or Johnson took action against Wray because of his race. Once again, Wray's theory establishes only that he was removed because of possible political pressure and public perception about his targeting of black officers, which is not actionable.
Wray's last attempt to show pretext is based on evidence (discussed earlier) that the City did not produce all emails from Johnson and Miles' email accounts in discovery. Wray now claims that a fact finder could infer that the City was concealing information regarding Johnson's discriminatory actions and that its failure establishes that the given reasons for suspending Wray were mere pretext for race discrimination. To infer that the allegedly missing emails contained evidence of race discrimination is a leap of faith simply too great for the court to take, especially considering there is no evidence of bad faith and the City began preserving emails two years before the initiation of this lawsuit. (Doc. 56, Ex. 13 at 25.) Thus, even viewing the evidence in the light most favorable to Wray, the court cannot rest Wray's discrimination claim on a speculative inference of pretext based in the City's inability to produce allegedly incriminating emails that may not have ever existed.
In the end, the ultimate question is whether Wray has adduced sufficient evidence to support an inference of racial discrimination.
Thus, even assuming Wray could establish a prima facie case of race discrimination, he has failed to produce sufficient evidence that the City's legitimate, non-discriminatory reason was pretextual.
The court's dismissal of Wray's section 1981 claims leaves Count I as the remaining claim of his lawsuit. That claim seeks a declaratory judgment as to the City's obligation to defend and indemnify Wray in connection with other litigation in which he was named as a defendant. (Doc. 3 ¶¶ 57-61.) The claim does not arise under federal law or the Constitution, nor does diversity exist between Wray and Defendants. There is no dispute that the court's exercise of jurisdiction over this claim exists only through the court's powers to exercise supplemental jurisdiction pursuant to 28 U.S.C. § 1367(a). (
For the reasons stated, therefore,
IT IS ORDERED that the motions for summary judgment by the City (Doc. 47) and Johnson (Doc. 44) are GRANTED, and the motions to strike by the City (Doc. 65) and Johnson (Doc. 63) are DENIED AS MOOT.
IT IS FURTHER ORDERED that, having dismissed all claims over which the court has original jurisdiction, the court declines to exercise supplemental jurisdiction over Count I, the remaining claim, which is REMANDED to the General Court of Justice, Superior Court Division, Guilford County, North Carolina.
(Doc. 46, Ex. E). To the extent other non-discriminatory reasons have been raised by Defendants, they need not be reached because the ones noted here are sufficient.