Forbes v. City of Durham

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-964
Filed: 5 September 2017
Durham County, No. 14 CVS 4155
WINSLOW FORBES, Plaintiff,
v.
CITY OF DURHAM, North Carolina, and JOSE L. LOPEZ, SR. in his individual
capacity and in his official capacity as Chief of Police for the City of Durham, and
THOMAS J. BONFIELD, in his individual capacity and in his official capacity as City
Manager for the City of Durham, Defendants.
Appeal by plaintiff from order entered on or about 11 July 2016 by Judge Henry
W. Hight in Superior Court, Durham County. Heard in the Court of Appeals 9 March
2017.
Edelstein & Payne, by M. Travis Payne and Sean Cecil, for plaintiff-appellant.
Kennon Craver, PLLC, by Joel M. Craig and Henry W. Sappenfield; and Office
of the City Attorney, by Kimberly M. Rehberg, for defendant-appellees.
STROUD, Judge.
Plaintiff Winslow Forbes (“plaintiff”) appeals from the trial court’s order
granting summary judgment for defendants City of Durham (“defendant City of
Durham”), Jose L. Lopez, Sr. (“defendant Lopez”), and Thomas J. Bonfield
(“defendant Bonfield”) and dismissing all of his claims with prejudice. On appeal,
plaintiff argues that he has demonstrated several genuine disputes of material facts
and that the trial court should not have granted summary judgment on any of his
FORBES V. CITY OF DURHAM
Opinion of the Court
retaliation claims. After review, we disagree and find the trial court did not err in
granting summary judgment on all of plaintiff’s claims.
Background
Plaintiff joined the City of Durham Police Department in 1988. He was
promoted to Corporal around 1997, Sergeant around 1999, and Lieutenant around
2001. Defendant Lopez became Chief of Police in 2007. Defendant Lopez promoted
plaintiff to Captain in 2009, and a little more than a year later, on 13 August 2010,
he appointed him to Assistant Chief.
Plaintiff was considered for a promotion to Deputy Chief on two occasions:
first, in May 2012, when he and Assistant Chief Larry Smith were considered for an
open Deputy Chief position. Defendant Lopez ultimately selected Assistant Chief
Smith for the promotion. Plaintiff “believed that both he and [Assistant Chief] Smith
were well-qualified candidates.” Nevertheless, afterwards, plaintiff told defendant
Lopez that “there were many black officers who were qualified for promotion, but
Chief Lopez had consistently promoted non-black officers over equally or better-
qualified black officers.” Plaintiff also allegedly told defendant Lopez that “many
black officers had a perception of discrimination[.]” Defendant Lopez “responded in
a defensive and angry tone.” Plaintiff alleged in his complaint that it appeared to
him that defendant Lopez “was angry about the suggestion that even a perception of
discrimination might exist.”
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Plaintiff alleged that after this conversation, defendant Lopez did not take any
action to address either actual or perceived racial discrimination and that he then
began treating plaintiff differently than similarly-situated white colleagues. For
example, plaintiff described a situation involving a black male Lieutenant under his
command and a white male subordinate officer who received a coaching and
counseling memo from the Lieutenant for violating a department policy and then
complained to a white male Sergeant in Internal Affairs. The Lieutenant told
plaintiff he had previously been treated unfairly by this Sergeant and he was
concerned he would once again be treated unfairly during this investigation. Plaintiff
requested another Internal Affairs officer be assigned to this investigation;
afterwards, defendant Lopez decided plaintiff would not be allowed to review the
investigative file, in contrast to the typical process where each individual in the chain
of command above the person under investigation can review the file and determine
whether or not they agree with Internal Affairs’ conclusions. Plaintiff told defendant
Lopez he felt he was being treated differently than white commanding officers in
similar circumstances.
In 2013, another Deputy Chief retired, leaving a position available. Plaintiff
alleges that he was the only remaining candidate for promotion based on the Review
Panel’s assessments approximately six months earlier. Plaintiff alleges that “[t]he
usual and customary practice of the Police Department has been to promote the next
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individual on the list of qualified applicants from the Review Panel, provided that the
list is not more than eighteen months old.” But on 18 February 2013, defendant
Lopez informed plaintiff that he intended to conduct a new process for the open
Deputy Chief position. “Plaintiff believes that [defendant] Lopez made this decision
on the basis of race, and in retaliation for [p]laintiff’s opposition to race discrimination
within the Police Department.”
Plaintiff filed a complaint with Human Resources on 28 February 2013,
alleging race discrimination and retaliation by defendant Lopez. Plaintiff applied for
the open Deputy Chief position and was interviewed by the Review Panel in March
2013. Defendant Lopez informed plaintiff on 21 March 2013 that he had selected
Assistant Chief Anthony Marsh -- a black male -- for the Deputy Chief position over
plaintiff. Plaintiff alleged in part that Chief Lopez “failed to promote him to Deputy
Chief in retaliation for his opposition to race discrimination by Chief Lopez.”
Plaintiff told defendant Lopez both via email and verbally that he believed the
promotion process “had been unfair, discriminatory, and retaliatory.” On 25 March
2013, defendant Lopez gave plaintiff a coaching and counseling memo in response to
his claims of discriminatory and retaliatory practices. Plaintiff filed a supplemental
complaint with Human Resources regarding the memo. Defendant City of Durham
then hired a consultant to investigate plaintiff’s allegations. Human Resources
contacted plaintiff on 7 June 2013 and informed him that “the consultant found his
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allegations of race discrimination to be ‘not substantiated’ but had been ‘unable to
determine’ whether retaliation had occurred.”
Plaintiff further alleged that on 2 July 2013, defendant Lopez made a “racially
offense remark in the presence of his Executive Committee and several other City
employees.” Defendant Lopez was preparing for a press conference regarding recent
shootings in Durham; he pointed out that all of the recent shooting victims were
African-American and had been involved in criminal activity. He also stated that all
known suspects were African-American. “Plaintiff felt that this remark was offensive
because the race of the victims should not be relevant to law enforcement officials.”
An Assistant Chief pointed out that one of the shooting victims was a black lawyer
who was an innocent bystander and not involved in any criminal activity; defendant
Lopez responded by stating that “the lawyer deserved to get shot because he was a
public defender.”
Plaintiff perceived this remark as racially motivated and highly offensive. On
16 July 2013, he met with defendant Bonfield, who was employed by the City of
Durham as City Manager, and reported defendant Lopez’s remark. Defendant
Bonfield assured plaintiff he took the allegation seriously and that it would be
investigated. Defendant Lopez held a press conference on 6 September 2013 and
stated that he did not recall making the remark, but he could not be certain that he
had not.
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Plaintiff filed his complaint on or about 29 July 2014. Plaintiff’s complaint
contained several causes of action for race discrimination and retaliation, including:
(1) under Title VII against defendant City of Durham; (2) under 42 U.S.C. § 1981against defendant City of Durham and defendants Lopez and Bonfield in both their
official and individual capacities; (3) under 42 U.S.C. § 1983 against defendant City
of Durham and defendants Lopez and Bonfield in both their official and individual
capacities; and (4) under the North Carolina Constitution against defendant City of
Durham and defendants Lopez and Bonfield in their official capacities.
Defendants City of Durham and Bonfield jointly filed an answer, and
defendant Lopez filed a motion to dismiss and answer of his own. On or about 29
May 2015, defendants filed a motion for summary judgment “as to all claims against
them in this matter.” The motion included an affidavit from defendant Lopez, and
defendants argued:
The pleadings in this matter, the attachments thereto, the
deposition testimony, the discovery responses in this
matter, and the affidavit [of defendant Lopez] . . .
demonstrate the absence of a genuine issue of material fact
and that [d]efendants are entitled to judgment as a matter
of law dismissing all claims against them.
The trial court held a hearing on the motion on 14 June 2016 and entered an order
on or about 11 July 2016 granting defendants’ motion for summary judgment and
dismissing plaintiff’s claims with prejudice. Plaintiff timely appealed to this Court.
Discussion
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I. Standard of Review
On appeal from summary judgment, the applicable
standard of review is whether there is any genuine issue of
material fact and whether the moving party is entitled to a
judgment as a matter of law. Summary judgment is
appropriate if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that any party is entitled to
judgment as a matter of law. If there is any evidence of a
genuine issue of material fact, a motion for summary
judgment should be denied. We review the record in a light
most favorable to the party against whom the order has
been entered to determine whether there exists a genuine
issue as to any material fact.
Smith v. Harris, 181 N.C. App. 585, 587, 640 S.E.2d 436, 438 (2007) (citations,
quotation marks, and brackets omitted).
Plaintiff argues that he has demonstrated genuine issues of material fact in
relation to the pre-textual nature of defendants’ justifications for the adverse actions
at issue. We will address these issues in relation to each of the underlying claims for
which plaintiff has raised arguments on appeal.
II. Retaliation claim under Title VII
Plaintiff first argues that the trial court erred in dismissing his retaliation
claim under Title VII against defendant City of Durham.1 Under Title VII:
It shall be an unlawful employment practice for an
1 Plaintiff has not raised any issues on appeal in relation to the discrimination component of
any of his claims; his appeal solely focuses on the retaliation component. Unfortunately, defendants’
brief only addresses the discrimination component of this first claim, so it is entirely unhelpful with
this first issue.
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employer to discriminate against any of his employees or
applicants for employment, for an employment agency, or
joint labor-management committee controlling
apprenticeship or other training or retraining, including
on-the-job training programs, to discriminate against any
individual, or for a labor organization to discriminate
against any member thereof or applicant for membership,
because he has opposed any practice made an unlawful
employment practice by this subchapter, or because he has
made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing under
this subchapter.
42 U.S.C.A. § 2000e-3(a).
This Court has previously set forth the burden of proof in a claim for retaliation
under Title VII:
A. Burden of Proof in Title VII Cases
According to the North Carolina Supreme Court, the
claimant carries the initial burden of proof in Title VII
cases. In addition, a prima facie showing of retaliatory
discharge requires a plaintiff to show: (1) he engaged in
some protected activity, such as filing an EEO complaint;
(2) the employer took adverse employment action against
plaintiff; and (3) that the protected conduct was a
substantial or motivating factor in the adverse action (a
causal connection existed between the protected activity
and the adverse action). Petitioner must prove “but for”
causation instead of “motivating factor” in his prima facie
case of retaliatory acts in violation of Title VII.
After plaintiff presents a prima facie case of
retaliation, the burden shifts to the defendant to show it
would have taken the same action even in the absence of
protected conduct. Defendant must articulate a legitimate
nondiscriminatory reason for its action. A legitimate
reason overcomes the presumption of discrimination from
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plaintiff’s prima facie showing if it has a rational
connection with the business goal of securing a competent
and trustworthy work force.
If defendant shows a legitimate reason that
overcomes the presumption, plaintiff then has to show that
the reason was only a pretext for the retaliatory action.
Therefore, a plaintiff retains the ultimate burden of
proving that the adverse employment action would not
have occurred had there been no protected activity engaged
in by the plaintiff.
Employment Sec. Comm’n v. Peace, 128 N.C. App. 1, 9-10, 493 S.E.2d 466, 471-72
(1997) (citations, quotation marks, and brackets omitted), aff’d in part, disc. review
improvidently allowed in part, and dismissed in part, 349 N.C. 315, 507 S.E.2d 272(1998). See also University of Texas Southwestern Med. Cntr. v. Nassar, __ U.S. __,
__, 186 L. Ed. 2d 503, 523, 133 S. Ct. 2517, 2533 (2013) (“Title VII retaliation claims
must be proved according to traditional principles of but-for causation, not the
lessened causation test stated in § 2000e-2(m). This requires proof that the unlawful
retaliation would not have occurred in the absence of the alleged wrongful action or
actions of the employer.”).
In this case, plaintiff contends that the following constitute protected activities
and meet the first element: the various occasions when plaintiff verbally raised
concerns to defendant Lopez regarding perceived racial discrimination against
African-American officers, including during the first week defendant Lopez became
Chief of Police; the series of written complaints regarding discrimination and
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retaliation that plaintiff filed with Human Resources beginning in February 2013;
the filing of an EEOC charge in August 2013; and the filing of plaintiff’s complaint in
this underlying matter in July 2014. Plaintiff argues that the adverse action was
defendant Lopez’s decision to have a new Review Panel process, instead of using the
list generated by the prior Review Panel, and his promotion of Assistant Chief Marsh
over plaintiff in March 2013. Accordingly, plaintiff argues that there are “at least
material issues of fact that must go to the jury regarding whether the decision to not
promote [plaintiff] constitutes retaliation.” And plaintiff notes our prior case law
holding that when the state of mind of the defendant is at issue, summary judgment
is rarely proper. See, e.g., Valdese Gen. Hosp., Inc. v. Burns, 79 N.C. App. 163, 165,
339 S.E.2d 23, 25 (1986) (“Summary judgment is rarely proper when a state of mind
such as intent or knowledge is at issue.”); see also Robertson v. Hartman, 90 N.C. App.
250, 253, 368 S.E.2d 199, 201 (1988) (“This Court has held that where there is a need
to ‘find facts’ then summary judgment is not an appropriate device to employ,
provided those facts are material.” (Citation omitted)).
But before we even get to this portion of plaintiff’s argument, we have to look
at the bigger picture. Plaintiff is appealing from the trial court’s order that granted
defendants’ motion for summary judgment and dismissed all of plaintiff’s claims. In
doing so, the trial court concluded that “there is no genuine issue of material fact”
and that defendants were “entitled to judgment as a matter of law.” The trial court
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dismissed plaintiff’s claims for discrimination, and plaintiff has not challenged the
trial court’s ruling on these claims on appeal. Plaintiff only appeals the trial court’s
dismissal of his retaliation claims.
We agree with the trial court that there are not any genuine issues of material
fact in this case. All parties seem to generally be on the same page regarding the
events leading up to defendant Lopez’s hiring decision when he selected Assistant
Chief Marsh -- also a black male -- over plaintiff. The issue is whether that decision
was motivated by a retaliatory basis. To determine that, we must apply the
framework above.
Even assuming that plaintiff correctly identified protected activities and an
adverse action on the part of defendant Lopez, as required for the first and second
elements, plaintiff struggles to demonstrate a causal connection between the
activities and the adverse action at issue. Many of the activities plaintiff mentions
took place after defendant Lopez decided to have a new Review Panel and the hiring
decision had been made. Defendant Lopez informed plaintiff that he intended to
conduct a new process for the open Deputy Chief position on 18 February 2013 and
informed plaintiff that he had selected Assistant Chief Marsh for the Deputy Chief
position on 21 March 2013. Plaintiff’s EEOC complaint and his underlying complaint
in this matter were not filed until August 2013 and July 2014 respectively. Plaintiff
cannot show how his filing of the EEOC complaints months later could have impacted
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defendant Lopez’s hiring decision which had already been made. As for the series of
written complaints plaintiff filed with Human Resources beginning in February 2013,
defendant Lopez explained in his affidavit that he was not informed of the fact that
plaintiff had filed anything with Human Resources until 27 March 2013, 37 days after
he had announced the new Review Panel process and six days after he notified
plaintiff that he had chosen Marsh for the position.
The only remaining protected activities that could have been tied to the hiring
decision were the “multiple occasions [plaintiff] verbally raised with [defendant]
Lopez what he and other African-American officers perceived to be racial
discrimination on [defendant] Lopez’s part.” Plaintiff notes that such comments were
even made during the first week defendant Lopez was employed as Chief, which
would have occurred back in 2007 -- before defendant Lopez promoted plaintiff to
Captain in 2009 and before defendant Lopez promoted him to Assistant Chief in 2010.
Plaintiff has not, however, shown any direct link between his comments to defendant
Lopez years and months prior to when defendant Lopez decided on how the promotion
decision would be made and his decision to hire Assistant Chief Marsh rather than
plaintiff for the Deputy Chief position. Any such connection must be more than mere
speculation. See, e.g., Brooks v. Stroh Brewery Co., 95 N.C. App. 226, 237, 382 S.E.2d
874, 882 (1989) (“The direct causal connection between the protected activity and
termination present in each of these cases is not evident in the case presently before
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the Court. This Court is not unmindful that circumstantial evidence is often the only
evidence available to show retaliation against protected activity. Nevertheless, the
causal connection must be something more than speculation; otherwise, the
complaining employee is clothed with immunity for future misconduct and is ‘better
off’ for having filed the complaint rather than being no ‘worse off.’” (Citations
omitted)). Plaintiff failed to forecast sufficient evidence connecting his prior
comments to defendant Lopez to the ultimate decision made to promote Assistant
Chief Marsh.
Furthermore, even assuming that plaintiff can demonstrate that his verbal
complaints of discrimination to defendant Lopez were connected to defendant Lopez’s
alleged adverse action of instituting a new Review Panel and not hiring him for the
Deputy Chief position, defendant Lopez can demonstrate a non-retaliatory reason for
the alleged adverse action, as Assistant Chief Marsh was also qualified for the Deputy
Chief position. Defendant Lopez explained in his affidavit that since he had become
Chief of Police, it had been his practice when filling open positions to use a promotion
committee to consider and rate the candidates and then make the ultimate decision
himself. He stated that he did not like to rely too much on seniority when making
decisions, and that at the time he was deciding between plaintiff and Assistant Chief
Marsh, the assessment panel rated both candidates as above average, but Marsh was
rated slightly higher. The panel spoke highly of both candidates, but “were more
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complimentary of Marsh.” While plaintiff has raised issue with some of defendant
Lopez’s alleged specific justifications for why he felt Marsh was better qualified than
plaintiff -- including a claim that it “had to do with the day-to-day manner in which
Chief Marsh presented himself and the work product he produced” -- plaintiff has not
challenged the Review Panel’s evaluation of Assistant Chief Marsh’s qualifications
as “above average” or that his rating was a bit higher than plaintiff’s. Nor has
plaintiff even alleged that the Review Panel itself made its evaluations improperly or
with any sort of retaliatory motivation. Thus, since defendants have articulated “a
legitimate nondiscriminatory reason” for the promotion of Marsh instead of plaintiff
which “has a rational connection with the business goal of securing a competent and
trustworthy work force,” they have “overcome[ ] the presumption of discrimination
from plaintiff’s prima facie showing[.]” Peace, 128 N.C. App. at 10, 493 S.E.2d at 472(citations and quotation marks omitted).
As noted above, plaintiff claims that even the decision to have a new Review
Panel to evaluate candidates was retaliatory, in addition to the hiring decision itself.
Plaintiff claims “[t]he usual and customary practice of the Police Department has
been to promote the next individual on the list of qualified applicants from the Review
Panel, provided that the list is not more than eighteen months old.” Plaintiff also
alleged in his complaint that this customary practice for handling promotions was
part of a written policy created by defendant Lopez, yet also noted that while
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“[p]ursuant to said policy, a promotion list expires after eighteen months, . . . it may
be extended for a longer period of time by Defendant Lopez at his discretion.” Thus,
although this may have been a customary practice in the past, plaintiff has not
presented any evidence that this practice was required by any official rules or policies
adopted by the Police Department, or that defendant Lopez did not have full
discretion to revise the policy -- which plaintiff acknowledges was created by
defendant Lopez from the outset. Defendant Lopez has presented a “legitimate
nondiscriminatory reason” for the use of the new Review Panel to evaluate
candidates, and plaintiff does not suggest any sort of impropriety by the Review
Panel. Id.Since defendants have shown “a legitimate reason that overcomes the
presumption, plaintiff then has to show that the reason was only a pretext for the
retaliatory action. Therefore, a plaintiff retains the ultimate burden of proving that
the adverse employment action would not have occurred had there been no protected
activity engaged in by the plaintiff.” Id. (citations, quotation marks, and brackets
omitted). Plaintiff argues that the “justifications” given by defendant Lopez for his
decision to promote Assistant Chief Marsh rather than plaintiff “are just not
believable.” We disagree. As noted above, Marsh’s qualifications and the panel’s
evaluation of Assistant Chief Marsh and plaintiff are undisputed. Plaintiff can claim
only that despite Assistant Chief Marsh’s qualifications and the Review Panel’s
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independent process of evaluating both plaintiff and Marsh, we should simply not
“believe” that Lopez’s hiring decision was not motivated by retaliation. Despite
thousands of pages of deposition testimony and discovery, plaintiff cannot point to
any evidence which shows that Lopez’s decision “would not have occurred had there
been no protected activity engaged in by the plaintiff.” Id. (citation and quotation
marks omitted). Plaintiff’s forecast of evidence does not show any material factual
dispute that would support a conclusion that the hiring decision would not have
occurred “but for” retaliation. See id. at 9, 493 S.E.2d at 472.
III. 42 U.S.C. §§ 1981 and 1983 Retaliation Claims
Next, plaintiff argues that the trial court should not have dismissed his
retaliation claims against defendant City of Durham and defendants Lopez and
Bonfield in their individual and official capacities under 42 U.S.C. §§ 1981 and 1983
because he asserted valid claims that should have been allowed to proceed to trial.
Plaintiff notes in his brief that he “will accept for purposes of the summary judgment
motion, that the Section 1981 and 1983 claims are merged[.]” Plaintiff notes further
that while “[o]n its face, Section 1981 relates to racial discrimination in the making
and enforcement of contracts . . . . it has been held to provide a remedy against racial
discrimination in employment.” Additionally, plaintiff argues that “[e]ven though the
language of Section 1981 does not expressly state that a claim for retaliation is
covered, the Supreme Court has made clear that it is an integral part of preventing
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racial discrimination,” and thus “a retaliation claim for reporting acts of
discrimination can be brought under Section 1981.” See CBOCS West, Inc. v.
Humphries, 553 U.S. 442, 445, 170 L. Ed. 2d 864, 869, 128 S. Ct. 1951, 1954 (2008)
(“The basic question before us is whether the provision [of 42 U.S.C. § 1981(a)]
encompasses a complaint of retaliation against a person who has complained about a
violation of another person’s contract-related ‘right.’ We conclude that it does.”).
a. Defendant City of Durham
In order to succeed in a Section 1983 claim against defendant City of Durham,
plaintiff would have to produce evidence of the City’s direct culpability and causation;
defendant Lopez’s alleged discriminatory intent cannot be imputed to defendant City
of Durham. See, e.g., May v. City of Durham, 136 N.C. App. 578, 584, 525 S.E.2d 223,
229 (2000) (“[T]o make out a claim against a municipality directly, a plaintiff must
do more than establish liability through respondeat superior, but must show that the
‘official policy’ of the municipal entity is the moving force of the constitutional
violation.” (Citation and quotation marks omitted)). Plaintiff does not meet this
burden. Plaintiff has not directed this Court to any specific policy statement,
ordinance, regulation, or other official policy of defendant City of Durham that caused
or encouraged the alleged retaliation. Accordingly, we hold that the trial court did
not err in granting summary judgment on plaintiff’s claims against defendant City of
Durham.
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b. Defendant Bonfield
Similarly, we hold that the trial court also did not err in dismissing plaintiff’s
Section 1981 and 1983 claims against defendant Bonfield in both his individual and
official capacity. Plaintiff makes no specific arguments on appeal in relation to any
of the defendants, and as to defendant Bonfield in particular any alleged retaliation
was too far removed to be imputed in any way to him.
Plaintiff’s only allegation related to defendant Bonfield in the complaint
relates to his reaction to defendant Lopez’s comment in July 2013, four months after
the promotion decision occurred. Plaintiff met with defendant Bonfield on 16 July
2013 to report defendant Lopez’s remark and defendant Bonfield “assured Plaintiff
that he took such allegations seriously and would investigate the matter.” Even
assuming the facts to be true -- and no one seems to dispute that this conversation
occurred on that date -- these allegations and the forecasted evidence do not support
any sort of Section 1981 or 1983 claim against defendant Bonfield for involvement in
defendant Lopez’s promotion decision that was made months before the conversation.
Plaintiff notes that defendant Bonfield “has authority to establish and
implement policies and procedures for investigation and action with regard to
complaints of unlawful employment actions toward City employees.” He also claims
that defendant Bonfield had “ultimate authority to override decisions made by
Defendant Lopez, when such decisions are made for unlawful discriminatory or
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retaliatory reasons.” But as discussed above, plaintiff has failed to forecast sufficient
evidence to support his claim against defendant Lopez himself, so there is no showing
of a need to override Lopez’s decision. At most, plaintiff’s evidence shows generally
how defendant Bonfield would have been informed of complaints regarding defendant
Lopez, but asserts nothing actionable by defendant Bonfield that could uphold a claim
against him in this matter. We therefore find the trial court did not err in granting
summary judgment on plaintiff’s Section 1981 and 1983 claims against defendant
Bonfield both in his individual and official capacity.
c. Defendant Lopez
Finally, plaintiff argues that the trial court should not have dismissed his
Section 1981 and 1983 claims against defendant Lopez, both in his individual and
official capacities. Our analysis here ultimately mirrors that which we have
explained above in relation to plaintiff’s Title VII claims. See, e.g., Brewer v. Cabarrus
Plastics, Inc., 130 N.C. App. 681, 686, 504 S.E.2d 580, 584 (1998) (“The models and
standards developed in jurisprudence under Title VII of the Civil Rights Act of 1964
. . . also apply to claims under § 1981.” (Citation omitted)). Plaintiff’s claim cannot
survive summary judgment because he both lacks sufficient evidence of a connection
between his engagement in protected actions and defendant Lopez’s decision to hire
Assistant Chief Marsh over him -- the alleged adverse employment action -- and
because defendant Lopez has given a legitimate, nondiscriminatory reason for his
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promotion decision that plaintiff cannot overcome or show is simply a pretext for
discrimination.
IV. North Carolina Constitutional Retaliation Claim
Finally, plaintiff argues that his retaliation claims under Article I, Section 19
of the North Carolina Constitution against defendant City of Durham and defendants
Lopez and Bonfield in their official capacities should not have been dismissed.
Article I, Section 19 states:
No person shall be taken, imprisoned, or disseized of his
freehold, liberties, or privileges, or outlawed, or exiled, or
in any manner deprived of his life, liberty, or property, but
by the law of the land. No person shall be denied the equal
protection of the laws; nor shall any person be subjected to
discrimination by the State because of race, color, religion,
or national origin.
Plaintiff argues that this Court should apply the “same logic and rationale” that
makes racial discrimination by a public entity illegal to the need to prevent
retaliation, and thus “there is surely a claim for retaliation available under Article I,
Section 19 of the Declaration of Rights [of the North Carolina Constitution.]”
Plaintiff, however, fails to provide any further support for this claim, and we conclude
that it fails for the reasons we have already stated above in relation to his Title VII
and Section 1983 claims. Accordingly, we hold the trial court did not err in dismissing
these claims.
Conclusion
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In sum, we conclude that plaintiff has failed to demonstrate any genuine issues
of material fact and that defendants are entitled to judgment as a matter of law as to
all of plaintiff’s retaliation claims. We hold that the trial court properly granted
summary judgment in defendants’ favor on all claims.
AFFIRMED.
Judge DILLON concurs
Judge MURPHY concurs in the result only.
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