GPD litigation, cont.

When I called it quits last night, I mentioned that US District Court Judge Thomas Schroeder's orders evaluate the individual claims of some of the black officers who are suing the city of Greensboro. Schroeder's review is to determine the plausibility of the individual claims to determine which should go forward to trial, in addition to the hostile work environment claims, which apply to all 39 plaintiffs.

The individual plaintiffs covered in this section of the order include Steven A. Evans, Lawrence Alexander Jr., Antuan Hinson, Norman Rankin and Larry Patterson.

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Schroeder allows a disparate treatment claim to go forward on behalf of plaintiff Steven A. Evans.

Evans alleges that although he was the only black GPD officer certified by the North Carolina Justice Academy (NCJA) as a marksmanship instructor, Wray appointed white officers, not Evans, as instructors at local community colleges and/or the Greensboro Police Academy. Had Evans obtained one of these appointments, he would have been compensated for his instruction.

Evans has plausibly alleged an “adverse employment action” for purposes of a disparate treatment claim, because he was allegedly denied a significant work opportunity for which he would have received compensation. Moreover, Evans has alleged that he was qualified for the instructing appointments.

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Likewise, the court finds that plaintiff Lawrence Alexander Jr. “has plausibly stated a claim for disparate discipline against the GPD defendants.”

According to the city legal report, Alexander gave criminal background and license tag information to an unauthorized civilian. For these infractions, he was investigated criminally by SID and cleared, and then an administrative investigation took place. Alexander challenges his criminal interrogation by Sanders and SID, alleging that his offenses did not warrant criminal questioning and “the investigations ‘were administrative, and should not have been undertaken by Detective Sanders.’” Alexander received a bureau-level reprimand, which affects an officer for three years. The city legal report states that this level of discipline was higher than that recommended by Alexander’s sergeant and captain. Susan Farkas, a white, non-sworn employee, gave license tag information to an unauthorized civilian as well, but she was not investigated by SID and she received only a first-level reprimand, two grades lower than Alexander’s reprimand. The lower level was negotiated to prevent Farkas from losing her Department of Criminal Information certification for one year….

Here, Alexander has clearly alleged that he is a member of a protected class and that less severe disciplinary measures were taken against an employee outside that class. It is somewhat less clear whether Alexander’s conduct was “comparable in seriousness” to Farkas’ conduct. While Alexander disclosed both criminal background and license tag information, Farkas disclosed only license tag information (although she had done so once before), and unlike Alexander, Farkas was a non-sworn employee.

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Plaintiff Antuan Hinson’s disparate treatment claim is thrown out.

Schroeder:

The [Second Amended Complaint] alleges that [onetime special intelligence Detective Scott] Sanders (at the direction of [former Chief David] Wray and [former Deputy Chief Randall] Brady) secretly placed keystroke-monitoring devices on the computers of several black GPD officers, including Hinson, without justification, that Sanders monitored Hinson’s keystrokes to determine his password, and that he used that password to enter Hinson’s e-mail account and download one year of Hinson’s e-mails. Sanders allegedly admitted to these actions in early 2009. Hinson alleges that these actions violated GPD policies and that no keystroke-monitoring devices have been used on any non-black officer’s computer.

The court finds that Hinson has not stated a claim for disparate treatment in the SAC, because he has not alleged any “adverse employment action” — the GPD defendants took no action affecting the “terms, conditions or benefits” of Hinson’s employment.

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The court holds that Brian James, who is now a captain with the Greensboro Police Department, does not have a disparate discipline claim based on an investigation conducted on him for allegedly associating with known offenders.

According to the city legal report attached to the SAC, James was monitored and then criminally interrogated by SID officers after allegedly associating with known offenders, although this is only a policy violation, not a crime. Like Alexander, James alleges that his criminal interrogation by Sanders and SID was discriminatory, claiming that (a) his offense did not warrant criminal questioning and (b) “the investigations ‘were administrative, and should not have been undertaken by Detective Sanders.’” When James asked for an administrative inquiry or investigation to clear his name, his superiors did not honor this request. After Officer Domitrivits, a white officer, allegedly associated with a known offender, she was given counseling and was instructed not to commit this violation again, but no investigation took place.

James has not alleged that any disciplinary measures were taken against him, nor has he alleged any adverse effect upon the terms, conditions or benefits of his employment…. Moreover, James has not alleged that any concrete investigative findings were made against him from which he wishes his name to be cleared or that he received any reprimand — he has alleged only the investigation itself.

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Schroeder finds that a number of claims related to plaintiffs Ernest Cuthbertson, Norman Rankin and Larry Patterson Jr. do not meet the disparate treatment test.

Discussion of Personnel Information: The amended complaint alleges generally that in a June 2005 meeting with the Greensboro Police Officers Association, Wray “publicly discussed the details of investigations into allegations of criminal conduct, identifying by name various black officers of the Greensboro Police Department in connection with such investigations.” This was allegedly “private personnel information” that should not have been disclosed. Plaintiffs do not allege what information was revealed or which plaintiffs were affected, other than that Wray pointed at Rankin and stated, “We looked at you too, but cleared you,” or words to that effect. This allegation does not state a claim for disparate treatment, because Rankin does not allege that he suffered any “adverse employment action.”…

Disciplinary Investigation: According to the city legal report, Rankin and Patterson were criminally investigated by SID for alleged connections to known offenders “in order to clear them of violating the department’s directives against associating with known offenders.” Both officers were cleared. Officer TV Moore, a white officer, was not investigated for allegedly more significant connections to known offenders. Instead, he was consulted by his supervisor about how he wanted the incident handled. Like James, Rankin and Patterson have not alleged that any disciplinary measures were taken against them, nor have they alleged any adverse effect upon the terms, conditions or benefits of their employment. The investigation itself, standing alone, does not constitute “adverse employment action.”

Fake Investigations: Cuthbertson, an officer within the SID, alleges in the amended complaint that he was repeatedly assigned to investigate fabricated criminal activity so that in his absence the other SID officers could investigate black GPD officers. This does not state a claim for disparate treatment, because even assuming that similarly situated non-black officers received different treatment, Cuthbertson has not alleged an “adverse employment action.”

Undercutting of Plaintiffs’ investigation: According to the city legal report, both Cuthbertson and Rankin, another officer within the SID, were assigned the investigation of Officer Steven Snipes for possible association with prostitutes. Sanders requested that a white officer (Sloan) continue to be involved in this investigation, expressing doubt that Rankin and Cuthbertson were competent. Sanders told Sloan, who had initiated the investigation, not to share all the information he knew with Rankin or Cuthbertson and not to let them meet with a crucial informant. Sanders said that he wanted Rankin to fail so that Wray would assign this investigation “back to us.” Like Cuthbertson’s previous allegation, these allegations fail to satisfy the “adverse employment action” requirement and not state a disparate treatment claim.

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Schroeder challenges an assertion in the Second Amended Complaint that “all the examples in the city legal report” of coercion by former Chief David Wray “leading to increased discipline or less favorable evaluations were targeted upon black officers.”

Schroeder writes

The city legal report does list three instances of “improper administrative pressure” involving black GPD officers. However, the report also alleges pressure brought by Wray upon Assistant Chief Tim Bellamy to lower the evaluation of a fourth officer, Captain Anita Holder whose race is not alleged. Moreover, plaintiffs acknowledge that the instances discussed in the city legal report are merely “examples.” Thus, Pryor’s claim would require the court to infer, without any factual basis, that Holder is also black, that the “examples” provided in the city legal report were the only instances of such disciplinary treatment (or that if other instances occurred, none affected white officers), that therefore only black officers received such treatment, and that this indicates Wray’s actions towards [plaintiff Joseph] Pryor individually were motivated by Pryor’s race. The court does not find this to be a reasonable chain of inferences from the facts provided in the city legal report.

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Schroeder finds there was no adverse employment action against plaintiff Stephen L. Hunter to support disparate treatment or retaliation claims.

Inappropriate Discipline: … In the [Second Amended Complaint], Hunter alleges that he was falsely accused of damaging a patrol car that he shared with several other officers and was “given documented discipline.” After Hunter threatened to file a grievance with the city manager, the memorandum documenting his violation and recommended discipline was rescinded. Presumably the rescission of the memorandum shows that Hunter never should have been charged in the first place. However, because Hunter ultimately received no discipline and suffered no “adverse employment action,” these allegations do not state a claim for disparate treatment or disparate discipline.

Retaliatory Investigation: The SAC also alleges that shortly after Hunter threatened to file his grievance, plaintiff Charles E. Cherry was instructed to investigate Hunter’s off-duty time reporting to establish evidence of possible fraud. After a preliminary inquiry, Cherry ended the investigation, finding insufficient grounds for continuing. Meanwhile, Cherry learned of facts supporting an allegation of improper off-duty time reporting by Officer Heinrich, a white officer, and Cherry reported these facts to his superior. However, no investigation into Heinrich’s actions ever took place. Because no disciplinary measures were taken against Hunter and he suffered no “adverse employment action,” … his allegations do not state a claim for disparate discipline or for disparate treatment generally.

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Schroeder finds that plaintiff Steven Snipes does not have a disparate discipline claim.

The city legal report attached to the SAC states that Snipes’ name “keeps appearing and being linked to prostitutions and illicit parties.” At one point, SID began an investigation into Snipes. The city legal report states that no support has ever been found for any link between Snipes and prostitutes. As noted above, an investigation, without more, is not an “adverse employment action” and does not support a disparate treatment or disparate discipline claim.

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The black officers' conspiracy claims against Wray and the other GPD defendants are dismissed.

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Schroeder grants that plaintiff Antuan Hinson has a plausible Fourth Amendment claim based on one-time special intelligence Detective Scott Sanders’ placement of a keystroke-monitoring device on Hinson’s computer. The plaintiffs’ motion to amend their complaint is granted with respect to this claim.

The only allegation that potentially raises Fourth Amendment issues is found in the proposed SAC: Sanders’ secret placement of a keystroke-monitoring device on Hinson’s computer and his use of the device to obtain Hinson’s e-mail password and to download one year of Hinson’s e-mails. These actions, authorized by Wray and Brady, allegedly violated GPD policies….

It is unclear whether the GPD defendants’ actions were reasonable, because the context of and reasons for Sanders’ downloading of Hinson’s e-mail messages are not alleged by Hinson. Moreover, Hinson has not alleged any GPD policy indicating that employees have no expectation of privacy in their e-mail messages. To the contrary, he alleges a GPD policy against searches of officers’ e-mail accounts without a showing of probable cause. Considering the facts alleged and drawing all reasonable factual inferences in Hinson’s favor, the court finds at this stage that Hinson’s proposed allegations plausibly state a Fourth Amendment claim under section 1983 and thus are not futile.

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Schroeder allows a claim of breach of contract to go forward with regard to Councilwoman Trudy Wade’s alleged disclosure of their names and the amount of the city’s settlement offer.

Plaintiffs allege that Wade’s disclosure of their names and the amount of the city’s settlement offer constituted a breach by the city of the stipulation between plaintiffs and the city. In response, the city seizes upon plaintiffs’ statement that “defendants’ public disclosure of confidential and protected personnel information was malicious, undertaken in bad faith and for discriminatory reasons, and so exceeded their authority as to amount to a waiver of any possible immunity afforded to state employees or officials.” The city argues that according to this statement, Wade’s actions exceeded the scope of her authority as a city council member and therefore the city cannot be liable for breach of contract based upon Wade’s actions….

… The court finds that the facts alleged by the plaintiffs, construed in the light most favorable to them, plausibly support a reasonable inference that Wade acted within the scope of her authority. Her alleged actions consist of attendance at a closed session of the city council “in her capacity as an elected member,” the making of a formal public records request, the receipt of a formal public records request from a news reporter, a response to that request, and an earlier communication with the news reporter….

The city rests its entire argument upon plaintiffs’ statement that “defendants’ public disclosure of confidential and protected personnel information… so exceeded their authority as to amount to a waiver of any possible immunity.” However, this statement is conclusory, conflicts with other assertions by the plaintiffs indicating agreement between Wade and the city, and was likely inserted in an effort to preempt immunity defenses by other defendants. Furthermore, plaintiffs are entitled to plead in the alternative, regardless of consistency, so the statement above does not prevent plaintiffs from alleging that Wade acted within the scope of her authority for purposes of this claim.