The two orders handed down by Schroeder are available here and here.
I'll be reading them and providing analysis this evening.
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Schroeder dismisses all Title VII claims by plaintiffs AJ Blake, Larry Patterson Jr., Darryl Stevenson and Frank Young because they apparently failed to obtain right-to-sue letters from the Equal Employment Opportunity Commission, which would have established that they had exhausted all administrative remedies. As evidence to support its argument that the Blake, Patterson, Stevenson and Young did not meet this requirement, the city filed affidavits from Human Resources Director Connie Hammond and former City Attorney Terry Wood attesting that they had not received or been made aware of right-to-sue letters for the four.
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Judge Schroeder dismisses plaintiff Mitchell Alston’s Title VII claim for a similar reason:
The court finds that it clearly appears on the face of the amended complaint combined with Alston’s right-to-sue letter that Alston filed his claim with this court around one year after receiving his right-to-sue letter. Plaintiffs do not provide any explanation or justification for this delay, nor is Alston even mentioned in plaintiffs’ response brief. Therefore, the court holds that Alston’s Title VII claim is barred as untimely and will be dismissed.
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Some corrections: I had previously posted the same order twice. That's fixed now. Also, I was mistaken to say that Blake, Patterson, Stevenson, Young and Alston have been dismissed altogether from the suit. Actually, only their Title VII claims were dismissed. They still have hostile workplace claims against the defendants. I've fixed that also. To clarify, one order pertains to against individual defendants, including former Chief David Wray and former Deputy Chief Randall Brady. The other pertains to claims solely against the city of Greensboro.
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John Bloss, who represents the black officers, says in a prepared statement:
Judge Schroeder obviously gave the matter very careful and thoughtful consideration. His orders streamline the legal issues that remain in the cases without dismissing any of the defendants. As counsel for the plaintiffs in these cases, we’re very excited that we can now begin to obtain information and records from the city of Greensboro and the other defendants relating to the officers’ claims, and to proceed with the case towards trial.
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On whether wrongful actions by certain police employees constituted a “municipal policy or custom,” Schroeder writes
Plaintiffs have failed to allege facts showing that the city manager, the city council or any other responsible policymaker had actual or constructive knowledge of the allegedly wrongful acts of the other defendants and that these policymakers deliberately failed to correct these wrongs. Plaintiffs’ amended complaint alleges that in January 2006 the city manager publicly condemned the GPD defendants’ actions and accepted Wray’s resignation as chief of police. At that time, he also announced that after reviewing one of the line-up books, he had confronted Wray about it in the summer of 2005, that Wray had denied knowledge of it, and that Wray had ordered Brady to hide it. The only other factual allegations involving municipal policymakers concern the stipulation, signed when the city was attempting to negotiate a settlement with plaintiffs. This hardly shows “deliberate indifference” by the city. Finally, plaintiffs do not even attempt to argue that the allegedly wrongful action of [Councilwoman Trudy] Wade — an isolated incident of releasing information pursuant to a public records request — constituted a “custom”…
The city manager referenced here is Mitchell Johnson, who was fired by the previous city council in 2009. Contrary to the conventional view that he left the city’s employment disgraced, this judicial opinion suggests instead that the former city manager exercised sound fiscal stewardship by mitigating the city’s legal exposure.
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Schroeder dismisses a claim against Wade, after summarizing the black officers’ complaint:
Plaintiffs’ specific allegations against Wade are that she ascertained plaintiffs’ identities and the amount of the city’s settlement offer to them, that she encouraged a reporter to request this information, that the reporter did so, that she revealed the information pursuant to the request and the reporter published it, that she did so to derail the settlement negotiations between plaintiffs and the city, and that this information was released in violation of state confidentiality laws and/or the stipulation. Wade argues that these alleged facts do not establish any federal constitutional violation….
Schroeder concludes, “The court finds that plaintiffs have failed to allege facts rising to the level of a federal constitutional or statutory violation.”
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Schroeder faults the black officers for a “shotgun” complaint, saying it “presents an array of generalized grievances and vague allegations. In plaintiffs’ own words, it alleges ‘discriminatory investigations, targeting of plaintiffs, disparate disciplinary practices, hostile work environment, failures to promote, and violations of the North Carolina Personnel Privacy Act.’ Notwithstanding, each plaintiff individually must allege facts plausibly showing that he or she is entitled to relief. Because of this, many of the plaintiffs’ more general allegations are clearly inadequate. For example, plaintiffs allege that [Scott] Sanders [a Greensboro police officer previously assigned to the special intelligence section] ‘made numerous investigations of black officers’ without following proper standards. Plaintiffs provide no other details about this allegation, so it is unknown which of the plaintiffs were investigated or even whether any plaintiffs were investigated at all. Similarly, plaintiffs allege that Wray and Brady repeatedly ‘failed to promote black officers… to positions for which such officers were qualified.’ Again, the amended complaint does not indicate whether any individual plaintiffs were among these officers, nor does it allege any specific instances in which a plaintiff was qualified for and denied a particular promotion."
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On the use of lineups that included photos of black officers by Sanders, Schroeder finds that the plaintiffs failed to meet the “adverse employment action” requirement to establish disparate treatment:
Plaintiffs have not alleged facts showing any concrete harm resulting from the creation of the lineup books, let alone any harm involving the ‘terms, conditions or benefits’ of their employment. It is unclear from plaintiffs’ allegations whether all of the claimed lineup books and photographs were shown to criminals or suspected criminals. If only some were, it is not clear which plaintiffs’ photographs were shown, nor is it clear how each individual plaintiff was affected by all this. The most serious allegation is that the lineup books “resulted in the exposure of black officers… who were working undercover,” but plaintiffs do not allege any additional fact showing how this entitles any individual plaintiff to relief. The only alleged harm applicable to each plaintiff is the creation of the lineup books itself, and this does not satisfy the definition of an actionable “adverse employment action.”
Schroeder’s decision to turn down the defendants’ request to dismiss the black officers’ hostile work environment claims, then, comes across as somewhat contradictory.
Plaintiffs’ photographs (and perhaps other personal information) was allegedly placed into lineup books, and at least some of these photographs were allegedly shown to criminal defendants, criminal suspects and the general public for the purpose of developing criminal charges against one or more black officers. If these allegations are true, the existence and use of the lineup books may have put each plaintiff at risk of false criminal accusations, targeting by criminals, or other harm. At this pleading stage, it is reasonable to infer that plaintiffs were aware of these actions, since there were “rumors” about the lineup books within the GPD at some point in 2005. The rumors were prevalent enough that Wray later claimed to have been “gravely concerned by this rumor.”
The court finds that plaintiffs’ amended complaint alleges facts plausibly stating section 1981 claims against the GPD defendants to the extent plaintiffs allege a racially hostile work environment. Therefore, the court denies the GPD defendants’ motions to dismiss as to plaintiffs’ hostile work environment claims under section 1981. Because the SAC contains all the allegations contained in the amended complaint, plaintiffs’ proposed amendment is not futile as to these claims and their motion to amend is therefore granted to this extent. Whether the GPD defendants’ actions were, and were perceived to be, sufficiently severe or pervasive to alter the conditions of employment and create an abusive atmosphere as to each plaintiff will be subject to discovery and further proof.
Schroeder also reviews allegations involving individual plaintiffs to determine whether their claims can go forward under other theories in addition to hostile work environment.
To be continued….
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