PHIFER v. CITY OF ROCKY MOUNT

ere a party makes only "general and conclusory objections that do not direct the court to a specific error in the magistrate's proposed findings and recommendations." Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). Absent a specific and timely filed objection, the court reviews only for "clear error," and need not give any explanation for adopting the M R. Diamond v. Colonial Life Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005); Camby v. Davis, 718 F.2d 198, 200 (4th Cir. 1983). Upon careful review of the record, "the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(c).

B. Plaintiff's Objections to the M R

1. Official/Individual Capacity Claims Regarding Defendant Manley

Plaintiff objects to the M R finding regarding the nature of plaintiff's claims against defendant Manley. The magistrate judge considered plaintiff's complaint as well as memorandum in opposition to defendants' motion for summary judgment and found that plaintiff asserted claims against defendant Manley in his official, not individual capacity. In Mullis v. Sechrest, the North Carolina Supreme Court found that a plaintiff who failed to specify whether the defendant was being sued in an official or individual capacity was suing in an official capacity. 347 N.C. 548, 551-52, 495 S.E.2d 721, 723 (1998). "[I]t is not often clear in which capacity the plaintiff seeks to sue the defendant. In such cases it is appropriate for the court to either look to the allegations contained the complaint to determine the plaintiff's intentions or assume that the plaintiff meant to bring the action against the defendant in his or her official capacity." Mullis, 347 N.C. at 552, 495 S.E.2d at 723. In determining that the plaintiff was suing the defendant in his official capacity, theMullis court considered the language of the plaintiff's complaint, which alleged that the defendant was an agent of the co-defendant school board. In the absence of a clear designation of whether the defendant was being sued in his personal or official capacity, the Mullis court interpreted this allegation to mean that the defendant was being sued as an agent of the school board, and thus in his official capacity.

In the present case, plaintiff failed to specify in his complaint whether he was suing defendant Manley in an individual or official capacity. After defendant Manley raised the defense of government immunity in his answer, plaintiff did not amend his complaint to designate in what capacity he was suing Manley. Plaintiff's complaint alleges that "Defendant John Manley is . . . an authorized agent acting on behalf of City of Rocky Mount as Chief of Police." Compl. ¶ 3. This designation suggests that plaintiff is suing defendant Manley in his official capacity pursuant to his actions as an agent for the police department. Another factor that indicates plaintiff is suing defendant Manley in his official capacity is that plaintiff does not set forth claims for relief against defendant Manley separately, but rather states his claims collectively against defendants Manley and City of Rocky Mount. Additionally,

[i]f plaintiff seeks an injunction requiring the defendant to take an action involving the exercise of a governmental power, the defendant is named in an official capacity. If money damages are sought, the court must ascertain whether the complaint indicates that the damages are sought from the government or from the pocket of the individual defendant.

Meyer v. Walls, 347 N.C. 97, 110, 489 S.E.2d 880, 887 (1997). Plaintiff seeks both an injunction and "economic damages according to proof" from defendants. Compl. ¶ 11. While the demand for economic damages can be indicative of an individual capacity claim, plaintiff's demand does not reflect a desire to recover from defendant Manley's pockets. Viewed as a whole, plaintiff's claims against defendant Manley are not sufficient to support a conclusion that plaintiff sued defendant Manley in his personal capacity.

An official capacity suit is "`another way of pleading an action against an entity of which an officer is an agent.'" Moore v. City of Creedmoor, 345 N.C. 356, 367, 481 S.E.2d 14, 21 (1997) (quoting Kentucky v. Graham, 473 U.S. 159 (1985)). "Thus, where the governmental entity may be held liable for damages resulting from its official policy, a suit naming public officers in their official capacity is redundant." Id. Plaintiff argues that Moore is restricted to Section 1983 claims. There is no language in that opinion that restricts the holding regarding official capacity claims to Section 1983 claims. Furthermore, the North Carolina Supreme Court adopted the reasoning from Moore inMullis, a suit involving a personal injury action, not a Section 1983 claim. "As we have previously noted, official-capacity suits are merely another way of pleading an action against the governmental entity." Mullis, 347, N.C. at 554-55, 495 S.E.2d at 725. Accordingly, the court adopts the magistrate judge's finding that plaintiff's claims against defendant Manley were identical to his claims against defendant City of Rocky Mount.

Plaintiff relies on Beck v. City of Durham, 154 N.C. App. 221, 230, 573 S.E.2d 183, 190 (2002) which states that while public officials are shielded from liability in their official capacities, they remain "personally liable for any actions which may have been corrupt, malicious, or perpetrated outside and beyond the scope of official duties." Id. The magistrate judge, however, considered this theory of liability and found that while plaintiff's claims against defendant Manley should be dismissed because plaintiff sued Manley in his official capacity, in the alternative, summary judgment should be granted for defendant Manley on the merits because plaintiff did not present an issue of material fact to support recovery on state law claims. (M R 22). The court will address plaintiff's objections to the M R regarding the state law claims in turn.

2. Defamation Claims Against Defendants Manley and City of Rocky Mount

Plaintiff objects to the magistrate judge's findings that the statements made by Chief Manley in the Form F5-B Report and to the officers of the La Grange Police Department did not show by clear and convincing evidence the actual malice required for a defamation claim against a public official. "Summary judgment is . . . appropriate in [a defamation action] . . . where plaintiff, who, assuming the burden of production to negate defendant's presumption of good faith with evidence of actual malice, sets forth no specific fact showing an issue as to defendant's motive, but rests upon bare allegation and suspicion." Dobson v. Harris, 352 N.C. 77, 87, 530 S.E.2d 829, 837 (2000). Since plaintiff was a police officer at the time the statements were made, and the statements were made to other public officials in the Rocky Mount and La Grange police departments regarding plaintiff's fitness for the job, he is considered a public official for the purposes of a defamation claim. Smith v. McDonald, 562 F.Supp. 829, 834 (M.D.N.C. 1983) (citing Dellinger v. Belk, 238 S.E.2d 788, 789 (N.C. Ct. App. 1977) (holding a police officer to be a public officer for a defamation claim)). The plaintiff can only recover if he can prove the malicious intent of the defendant and the falsity of the statements. Id. at 835. In defamation actions brought by public officials, plaintiff must prove that defendant published the defamatory statement with actual malice. New York Times v. Sullivan, 376 U.S. 254, 279-80 (1964). The "actual malice" standard requires "clear and convincing proof that the defamatory falsehood was made with knowledge of its falsity or with reckless disregard for the truth." Gaunt v. Pittaway, 139 N.C. App. 778, 785, 534 S.E.2d 660, 665 (2000) (citing New York Times, 376 U.S. at 342).

In this case, plaintiff has failed to show with clear and convincing proof that the defamatory statement was made with knowledge of its falsity or reckless disregard for the truth. Taking the facts plaintiff alleged as true, defendant Manley's statements on plaintiff's F5-B report and to the La Grange police department were motivated by a desire to "get even" at plaintiff for plaintiff's actions regarding defendant Manley's alleged affair. (DE # 33, Moore Aff. at 4). Additionally, Lieutenant Mehus dishonestly accused plaintiff of speeding and helped defendant Manley defame plaintiff. Two other members of the Rocky Mount police department, however, provided affidavits describing instances in which they saw plaintiff speeding that suggest defendant Manley had reasonable grounds upon which to doubt plaintiff's truthfulness. Additionally, Captain Fahnestock stated that she investigated plaintiff's allegations that Lieutenant Mehus cursed at plaintiff and found the allegations to be untrue. Plaintiff did not allege that Captain Fahnestock and Corporal Edwards were influenced by the same motives that he alleges influenced defendant Manley and Lieutenant Mehus. While plaintiff did offer the affidavit of Shirley Moore who said that defendant Manley threatened to get even with the plaintiff, the affidavits of Fahnestock and Edwards prevent the plaintiff from meeting the "clear and convincing" standard that defendant Manley made statements about plaintiff knowing they were false or in reckless disregard for the truth. Accordingly, plaintiff's defamation claim against defendant Manley and the City of Rocky Mount fails.

3. Interference with Prospective Contract Claims Against Defendants Manley and City of Rocky Mount

Plaintiff objects to the magistrate judge's finding that plaintiff failed to plead sufficient damages to satisfy the requirements of an interference with prospective contract claim. The magistrate judge analyzed this claim under a tortious interference with contract standard. The plaintiff did not allege tortious interference with contract, but rather intentional interference with prospective advantage. See Compl. ¶ 8 (alleging "Wrongful/Intention Interference with Prospective Advantage" against all defendants). Regardless of the magistrate judge's application of the legal standard, summary judgment is proper for defendants as to this claim.

"[I]t is generally held that to interfere with a man's business, trade or occupation by maliciously inducing a person not to enter into a contract with a third person, which he would have entered into but for the interference, is actionable if damage proximately ensues, when this interference is done not in the legitimate exercise of the interfering person's rights, but with a malicious design to injure the third person or gain some advantage at his expense." Spartan Equip. Co. v. Air Placement Equip. Co., 263 N.C. 549, 559, 140 S.E.2d 3, 11 (1965). Plaintiff must show that he would have gotten the job with the La Grange police department but for defendants's statements about him and also that he suffered damages.

Plaintiff has not shown any damage from not receiving the job with the La Grange police department. The department disbanded shortly after plaintiff applied for the job. Furthermore, plaintiff went to work for the Fremont Police Department immediately after he left the Rocky Mount Police Department. (DE # 33, App. 3, p. 51). In his deposition, plaintiff noted that at the meeting with defendant Manley regarding plaintiff's employment with the Rocky Mountain Police Department, he told defendant Manley that he was "out" because he had already gotten a text message confirming new employment and his new employer wanted to know when he could begin. Id. While plaintiff did say that there were more advancement opportunities at La Grange, plaintiff himself acknowledged that La Grange is no longer in existence, so advancement at La Grange would not have been a possibility. Furthermore, the only damages that plaintiff alleged in the complaint were "injury, losses and harm to Plaintiff, for which Plaintiff seeks damages." Compl. ¶ 9. Since plaintiff was employed immediately after leaving the Rocky Mount police department, and would not have had the opportunity to advance at La Grange Police Department, he has not sufficiently shown damages required for an interference with prospective economic advantage claim. Accordingly, the court grants summary judgment for defendants as to this claim.

4. Title VII Claims Against Defendant City of Rocky Mount

Plaintiff objects to the magistrate judge's findings that plaintiff does not establish a prima facie case of unlawful employment practice under Title VII. Title VII makes it an "unlawful employment practice for an employer . . . to discriminate with respect to . . . compensation, terms, conditions, or privileges of employment, because such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(10). Title VII also makes it an unlawful employment practice for an employer to discriminate against an employee because he has opposed any practice made an unlawful employment practice within the Title VII statute. Id. § 2000e-3(a). To establish a prima facie case of retaliation under Title VII, a plaintiff must show the following: (1) that he engaged in protected activity; (2) that the defendant took an adverse employment action against him; and (3) that a causal connection existed between the protected activity and the adverse action. Williams v. Cerberonics, Inc., 871 F.2d 452, 457 (4th Cir. 1989). The magistrate judge found plaintiff's comments to defendant Manley about the alleged affair between Manley and Cadet Moore to be protected activity, but found that plaintiff did not sufficiently allege adverse employment action and a causal connection between the protected activity and adverse action.

a. Intolerable Working Conditions

Plaintiff objects to the magistrate judge's findings that plaintiff did not present evidence of intolerable working conditions sufficient to prove constructive discharge under Title VII, 42 U.S.C. § 2000e-2(a)(10). It is established that an employee is entitled to relief under Title VII even absent a formal discharge if an employer makes an employee's working conditions intolerable as to induce the employee to quit. Martin v. Cavalier Hotel Corp., 48 F.3d 1343, 1353-54 (4th. Cir. 1995) (internal quotations omitted). To demonstrate constructive discharge, a plaintiff must allege and prove two elements: (1) "deliberateness of the employer's actions" and (2) "intolerability of the working conditions." Id. (internal quotations omitted). Courts have found intolerable working conditions when employees are repeatedly subject to insults about their race or national origin. Amimokri v. Baltimore Gas and Elec. Co., 60 F.3d 1126, 1132 (4th Cir. 1995) (finding intolerable working conditions when co-workers daily subject employee to epithets about his national origin); Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 671, 677 (7th Cir. 1993) (finding intolerable working conditions when employee was subject to "racist comments and taunts"). However, "`[d]issatisfaction with work assignments, a feeling of being unfairly criticized, or difficult or unpleasant working conditions are not so intolerable as to compel a reasonable person to resign.'" Williams v. Giant Food Inc., 370 F.3d 423, 434 (4th. Cir. 2004) (quoting Carter v. Ball, 33 F.3d 450, 459 (4th Cir. 1994)) (dismissing employee's Title VII constructive discharge claims when supervisors yelled at her, she was given poor evaluations, chastised in front of customers, and required to work with an injured back). "Title VII was not designed to create a federal remedy for all offensive language and conduct in the workplace." Hopkins v. Baltimore Gas Elec. Co., 77 F.3d 745, 754 (4th Cir.), cert. denied, 519 U.S. 818, 117 S.Ct. 70 (1996). Rather, the purpose of Title VII is to protect a reasonable person from a work environment in which abuse is sufficiently "severe or pervasive as to alter the conditions of his or her employment." Buckner v. Gen. Signal Tech. Corp., 163 F.Supp.2d 617, 624 (W.D.N.C. June 13, 2000) (quoting Hopkins, 77 F.3d at 753).

Accepting plaintiff's allegations as true, and assessing the facts in the light most favorable to plaintiff, the following is a list of incidents that plaintiff experienced while working at the Rocky Mount Police Department: plaintiff was refused a shift change after requesting one in order to take adoption classes and accomodate his wife's chemotherapy schedule; plaintiff was reprimanded for his body language and manner of speaking to Lieutenant Mehus; plaintiff was falsely accused by colleagues of speeding to work and improper driving; plaintiff was reprimanded for entering a house without backup when another officer falsely radioed that he was on the scene with plaintiff; and Lieutenant Mehus told plaintiff to "shut his damn mouth" in a discussion. While these incidents are uncomfortable and unpleasant, taken as a whole they do not rise to the level of being intolerable, which is what is required in a Title VII claim. Furthermore, plaintiff described his working conditions as not hostile, but uncomfortable. (DE # 33, App. 3, p. 12). Plaintiff's characterization of his working conditions as merely uncomfortable supports the finding that he has not alleged intolerable working conditions. Accordingly, plaintiff has not shown that his decision to leave the Rocky Mount Police Department constituted an adverse employment action under Title VII.

b. Adverse Employment Action

Plaintiff objects to the magistrate judge's finding that plaintiff was not eligible for a performance review and vacation pay and thus did not present evidence that he suffered an adverse employment action under Title VII. An adverse employment action is a discriminatory act which "adversely affects[s] `the terms, conditions, or benefits' of the plaintiff's employment." James v. Booz-Allen Hamilton, Inc., 368 F.3d 371, 375 (4th Cir. 2004) (citations omitted). "Conduct short of `ultimate employment decisions' can constitute adverse employment action." Id. (citations omitted). Thus, denial of a performance review and vacation pay would be considered adverse employment actions under the statute.

The magistrate judge found that plaintiff was not yet eligible for a performance review and vacation pay. Plaintiff acknowledges that he was subject to a year-long probationary period after he began work, but argues that his probationary period began on November 20, 2006, and thus that he was entitled to these benefits beginning November 20, 2007, before he left the police department. Defendant argues that plaintiff's probationary period did not begin until February 20, 2007 because he was not yet certified as a police officer by the North Carolina Criminal Justice Education and Training Standards Commission. Plaintiff did not become certified as a police officer until February 20, 2007 because the Commission was investigating an incident of disorderly conduct involving plaintiff that occurred in New Jersey. Plaintiff acknowledges that he was not certified until the incident was resolved in February of 2007. (DE # 33 Att. 3, p. 36). Although plaintiff's confirmation of an offer of employment from Rocky Mount Police Department stated that his probationary period of employment began on November 20, 2006, it was department policy that plaintiff not be considered a full police officer until he was certified in February 2007. The Human Resources Director for the City of Rocky Mount who denied plaintiff's request for vacation pay and performance review did so in light of her interpretation regarding plaintiff's probationary status. (DE # 28 Henderson Aff. 4 Ex. B). While plaintiff has alleged actions that would rise to the level of an adverse employment action, plaintiff has not shown the causal connection between his protected activity and the adverse employment action. Rocky Mount Police Department policy dictates that plaintiff did not become eligible for his benefits until February of 2008, and it was departmental policy alone that determined this result. Accordingly, plaintiff failed to make out a prima facie case of retaliation as to the denial of vacation pay and a performance review because such denial did not constitute an adverse employment action under Title VII.

Additionally, plaintiff objects to the magistrate judge's finding that the statements made by defendant Manley on the F-5B report and to the La Grange police department were not adverse employment actions. The scope of the Title VII antiretaliation provision extends beyond only workplace or employment-related retaliatory acts and harm. Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 65 (2006). "An employer can effectively retaliate against an employee by taking actions not directly related to his employment or by causing him harm outside the workplace." Id. at 63. The Second Circuit has held that a false, negative employment reference could constitute an adverse employment action under the antiretaliation provision of Title VII. See Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 178-79 (2d. Cir. 2005).

The magistrate judge found that plaintiff did not present evidence sufficient to raise a genuine issue of material fact with relation to whether the statements defendant Manley made were false. While the court must view the evidence in the light most favorable to plaintiff, "in determining whether a question of fact exists, the trial court must examine all of the evidence and draw all reasonable inferences in favor of the non-moving party." Ross v. Communications Satellite Corp., 759 F.2d 355, 364 (4th Cir. 1985), abrogated on other grounds, Price Waterhouse v. Hopkins, 490 U.S. 228, 238 (1989). Even taking plaintiff's allegations regarding defendant Manley's motives and Lieutenant Mehus's support of defendant Manley as true, plaintiff fails to present evidence suggesting that Captain Fahnestock or Corporal Edwards were falsely manufacturing complaints regarding plaintiff's driving, or that Captain Fahnestock was untruthful regarding her investigation into Lieutenant Mehus's alleged swearing at plaintiff.

In his objections, plaintiff specifically objects to the court's consideration of Captain Fahnestock's investigation into Lieutenant Mehus's alleged swearing at plaintiff. The conversation in which Lieutenant Mehus allegedly cursed at plaintiff was recorded. Captain Fahnestock stated in her affidavit that she listened to the recording and Lieutenant Mehus did not swear. The recording is not part of the record. Plaintiff argues that to consider this evidence as a basis upon which defendant Manley might have doubted plaintiff's truthfulness is to rely on hearsay. Hearsay is a "statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Fed.R.Evid. 801(c). A "declarant" is a person who makes a statement, and a statement is "an oral or written assertion or . . . nonverbal conduct of a person, if it is intended by the person as an assertion." Fed.R.Evid. (a), (c). Here, the "statement" being offered for its truth is not Lieutenant Mehus's statement, but rather the statement of Captain Fahnestock who stated in an affidavit what she heard when she listened to the recording. The court is not required to listen to the recording in order to consider Captain Fahnestock's affidavit. Cf. Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 521 (1991) (refusing respondents' request that court listen to tape-recorded statements at summary judgment stage because petitioner provided affidavit that he did not make such statements). Moreover, the tape recording itself is not part of the record, and plaintiff did not specifically request it. In its memorandum opposing summary judgment, plaintiff acknowledges that the recording may not contain the cursing and makes no demand that defendants provide the recording for consideration. Even considering the facts in the light most favorable to the plaintiff, the court finds that there is still sufficient evidence to support an alternative basis for defendant Manley's statements regarding plaintiff's truthfulness in the F-5B report and to the La Grange police department other than a mere desire to harm plaintiff. Accordingly, plaintiff fails to show that defendant Manley's statements were an adverse employment action and fails to make out a prima facie case of retaliation.

CONCLUSION

Upon de novo review of those portions of the magistrate judge's M R to which specific objections have been filed, and upon considered review of those portions of the M R to which no such objection has been made, the court ADOPTS the findings and recommendations of the magistrate judge in full, and GRANTS summary judgment for defendants. The clerk of court is DIRECTED to close this case.

SO ORDERED, this the 28th day of September, 2010.