Mixed signals on former chief's handling of grievances

UPDATE: Assistant City Manager Michael Speedling confirms in a letter to then-police Capt. Charles Cherry that Chief Tim Bellamy did say in a May 2010 command staff meeting: "If you think there is corruption here or don't like it here, you need to turn in your paperwork and get the hell out of here."  

ORIGINAL POST: Among the allegations in a federal racial discrimination lawsuit filed by fired Greensboro police officers Charles Cherry, Joseph Pryor and Robert Reyes is that former Chief Tim Bellamy said during a May 2010 command staff meeting: “If anyone thinks there is corruption in the GPD, they need to turn in their paperwork and get the hell out of here!”

Cherry, then a captain, alleges that he was the only one who had written grievances or complaints alleging corruption at the time. The complaint further alleges that white commanders cheered and applauded the chief’s statement.

The city’s answer, filed by lawyers Julie C. Theall and Patrick M. Kane with Smith Moore law firm, makes a whole-cloth denial of the allegation.

That contradicts the findings of Assistant City Manager Mike Speedling, who investigated a grievance by Cherry about the chief’s alleged remarks. Speedling confirmed to YES! Weekly less than two months after the command staff meeting that he determined through his investigation that Bellamy had made the statement, although Speedling said he found nothing inappropriate about it.

“The chief is expressing to folks that if they have such a lack of confidence in the department, then he has a problem with it,” Speedling said at the time. “And we have a problem with it. He’s putting across that if you have that kind of firm belief that the department is corrupt, you need to back it up with facts. There’s a right way and a wrong way to go about that. We haven’t seen any evidence of corruption. He passionately believes the police department is a fine department that doesn’t have corruption in it, and he wants his senior staff to support the department.”

GPD hit with yet another discrimination suit

Fired Greensboro police officer Deborah V. Thomas has filed an employment discrimination lawsuit against the city of Greensboro in federal court.

Three other fired police officers, Charles Cherry, Joseph Pryor and Robert Reyes, have also recently filed a discrimination suit in the federal court. Cherry, a former captain, assisted Thomas in filing grievances acting as a private citizen after he had himself been fired.

Thomas is representing herself in her suit against the city.

In addition to the city of Greensboro, the extensive list of defendants includes former City Manager Rashad Young, former Chief Tim Bellamy, Assistant City Manager Michael Speedling, Chief Ken Miller and 10 out of 25 members of the department's current command staff, along with an employee of the city's human relations department.

Thomas filed a complaint with the US Equal Employment Occupation Commission, or EEOC, against the department in March 2011, which was filed as an exhibit with her lawsuit. The complaint references a previous EEOC charge of sex discrimination and retaliation in March 2010.

EEOC investigator Renée Grube wrote Thomas in response:

The processing of your charge of employment discrimination in the above referenced matter has been completed. The Equal Employment Opportunity Commission is dismissing your charge and is issuing you a Notice of Right to Sue.

The evidence obtained by the commission indicates that on January 26, 2010 and again on February 11, 2010, you failed to confiscate knives from students and were appropriately reprimanded for failure to property handle evidence and for improper use of discretion. In May 2010, your supervisor asked you several times to provide him with a copy of a criminal investigative report regarding a complaint that he had received concerning your conduct and attitude at a court appearance. In an act of insubordination, you repeatedly refused to provide the requested information. Although a dismissal was recommended, you received a departmental reprimand and were placed on performance improvement plan. The respondent has the discretion to reassign employees and you were reassigned from school resource to legal support where you would no longer have responsibility for collecting and processing evidence.

Chief Miller informed Thomas of her termination on April 19, 2011. An administrative board comprised of department employees found that Thomas had violated departmental directives related to obedience to orders, procedural steps and general conduct.

Capt. Christopher N. Walker wrote in the findings letter:

On October 14, 2010, Officer Thomas was ordered by her supervisor, Sergeant DJ Davis, to comply fully with Departmental Directive 3.9 regarding the filing of any further grievances.

On October 22, 2010, a grievance was filed by Officer Thomas entitled (in part) “Complaint of continued discrimination, retaliation, intimidation, harassment, hostile work environment, threats, threats of unwarranted disciplinary action…”, directly to the City Manager’s Office without being directed to her supervisor or the resource management division or city human resources. This action was in violation of the direct order given by Sergeant Davis as well as Departmental Directive 3.9.2.

On January 12, 2011, a video entitled “Greensboro police corruption continues — Sgt. DJ Davis, Chief Ken Miller, City Manager Rashad” (Young) was posted on a public website “YouTube.” This video contained what appeared to be three separate audio recordings of conversations between Sergeant DJ Davis and Officer DV Thomas concerning administrative personnel matters. During an administrative investigation, by her own admission, Officer Thomas admitted to personally releasing this information to a private citizen. The public release of this administrative personnel information hinders the department’s efforts to achieve its goals, violates its policies and brings discredit upon the department and its employees. This act is a violation of Departmental Directive 1.5.1 General Conduct.

The Rev. Nelson Johnson, co-pastor at Faith Community Church, said in a letter to Miller last April that he and staff at the Beloved Community Center took full responsibility for posting a YouTube video featuring a conversation between Thomas and Sgt. Darrin Davis. Johnson said he believed even after learning Thomas was investigated and disciplined for the incident that he believed posting the video was in her and the department’s best interest.

Thomas filed a third EEOC charge in June 2011 following her firing, again alleging continued discrimination, harassment, intimidation and retaliation.

EEOC investigator Renée Grube responded:

The processing of your charge of employment discrimination in the above referenced matter has been completed. The Equal Employment Opportunity Commission is dismissing your charge and is issuing to you a Notice of Right to Sue.

The evidence obtained by the commission indicates that in a previous EEOC charge you alleged disparate treatment due to your race and sex when your supervisor, Sergeant Heard, disciplined you several times and recommended your termination. Instead of termination, you were placed on a performance improvement plan and assigned to a different supervisor, Sergeant Davis, and to a new position in the legal process section. In this charge, you now allege that your new supervisor, Sgt. Davis, discriminated against you because of your sex and disability. In your 90-day performance review, Sgt. Davis noted that you are not approachable, you do not accept positive or negative feedback from your supervisor, you do not adhere to city policy and department directives, and you are not willing to accept your role as a subordinate functioning effectively in a paramilitary organization. You were discharged because your behavior was insubordinate, you violated policy, and because you lacked the good judgment required of a law enforcement officer. The evidence is insufficient to show that you were treated disparately because of your sex, your face, your alleged disability, or in retaliation for filing previous charges.

Law firm's services to city range from landfill to police discrimination

Brooks Pierce law firm and in particular partner George House have their hands in a lot of matters that affect public policy in the city of Greensboro as outside counsel.

From an Aug. 24 letter (link) from George House to interim City Attorney Tom Pollard outlining proposed terms and conditions of the law firm's representation:

We are pleased to provide you with an updated and consolidated engagement letter to continue to serve as legal counsel in assisting the city of Greensboro on various matters. There are four matters on which we are currently representing the city of Greensboro: 1) Assistance in responding to the complaint filed by certain citizens to the proposed reopening of the White Street Landfill and related permitting activities; 2) Assistance in analyzing options to the currently required city wastewater treatment plan and stormwater upgrades; 3) Assistance in defending Councilwoman Trudy Wade in the Alexander litigation; 4) Assistance in addressing miscellaneous environmental matters and questions.

For those who do not follow the minute, blow-by-blow details of who is suing the city of Greensboro day by day, "the Alexander litigation" refers to a pending federal lawsuit by 39 black Greensboro police officers that is currently before US District Judge Thomas D. Schroeder.

On the matter of billing, House explains,

I will be the attorney having primary responsibility for city matters. Our current hourly rates for the attorneys generally assisting me are set forth below, along with the discounted rate we currently offer the city. We rarely discount hourly rates, and these discounts are the largest we give. However, we believe we have a responsibility to assist the community in which we live.

According to the schedule provided in the letter, House is the highest paid employee of Brooks Pierce, with a usual hourly rate of $415 per hour and discounted rate of $300 per hour.

"If this letter accurately sets forth the understanding between the firm and you concerning the terms and conditions of our firm's representation, please show your acceptance by signing the enclosed copy of this letter and returning it to me," House writes.

A contract based on House's engagement letter comes before the Greensboro City Council for approval on Tuesday.

Energy and participation flags in police accountability push

A community meeting last night at an east Greensboro meeting found a core group of activists struggling to maintain momentum in a campaign framed as a challenge to the Greensboro Police Department to improve professionalism and accountability.

The Rev. Clarence Shuford, who is president of the Pulpit Forum and who presided over the meeting, struggled to impart a sense of common purpose and solidarity.

“If we live in a community where people are being mistreated, it’s a possibility that we may one day be mistreated,” he said, adding later: “If our police officers are being subjected to injustice, what hope is there for us citizens?”

Among the 30 so participants in the sanctuary at Bethel AMEZ Church, most were familiar faces in the unique coalition that has formed around the cause: two former police officers, a street organization leader and members of his group who have been under withering pressure from the police department over the past three years, white Episcopal clergymen, African-American pastors, college students and young social justice staffers.

Several months after the purging of three black officers who have accused the department of discrimination and the installation of new chief, the campaign for reform has hit a low ebb and the personnel drama that attended the firings has faded from public consciousness for the most part. The campaign has hit a holding pattern of sorts.

The North Carolina Almighty Latin King and Queen Nation, or Latin Kings, has filed a Title VI discrimination complaint against the Greensboro Police Department with the assistance of a Durham-based social justice organization led by a former US Justice Department assistant attorney general.

The Beloved Community Center has processed several citizen discrimination complaints against the department that have been submitted to the Justice Department, along with the initial complaint filed by the Latin Kings. Joyce Johnson of the Beloved Community Center said she has been in frequent communication with representatives of the federal agency, but the Justice Department has yet to formally respond.

Two NC A&T University students have filed a complaint against the Greensboro Police Department contending they were subjected to an unwarranted traffic stop and unlawful detention. It is unclear what progress, if any, the police department has made in investigating the students’ complaint.

Former police Capt. Charles Cherry, one of those terminated, has worked closely with the Beloved Community Center, has advised citizens including the A&T students about redressing complaints, and has also continued to promote grievances by Officer Deborah Thomas, who is currently employed by the department. Thomas’ has enlisted the Rev. Nelson Johnson of the Beloved Community Center as her spiritual counselor under the provisions of the department’s employee assistance program, and contentious meetings between the officer and her supervisor have made their way onto YouTube.

Much of last night’s meeting was devoted to reviewing the events of the past year – testament to either ineffective or hostile media accounts that have failed to generate significant sympathy with the embattled and fired police officers, much less the citizens who have alleged civil rights abuses.

Nelson Johnson described the situation in the police department as “a subculture, that is a way of life inside of the department, that abuses its power and uses double standards.” Considering how many of those present had attended previous meetings it was striking that the pastor assumed his audiences lack of familiarity with the facts of the various cases in his remarks.

“You may have heard that quite a bit, but you have no real way of knowing whether that’s true or not unless your trust level of us is up,” he said. “And given some of the battering that we’ve gotten, I can understand if it is not. And so, tonight, we wanted to take some time to walk somewhat slowly through some of the history of these cases so that you will be certain of the ground you’re standing on. Because we believe this will be a long and difficult struggle. It’s within the police department, but all the city council members have received all the documents – and the city manager. And we believe that the press has not done a good job of investigating and sharing the information with the public. So there must be a group of people who make a commitment that they are going to ensure that the public understands, and then the public can be stronger players in a democratic process.”

Johnson then gave a PowerPoint presentation centered on Cherry, whom he contended was fired for assisting fellow officers with grievances. The official reason for Cherry’s dismissal was lack of discretion for acts including violation of a confidentiality agreement when he revealed that another captain said he could not trust officers who are plaintiffs in a federal discrimination lawsuit. Cherry contends that the remark revealed discrimination and retaliation within the department, and the need to report it as a violation of federal law trumped the confidentiality agreement.

Johnson’s presentation included the following details:

• Officer Joseph Pryor was investigated for an alleged assault against a suspect in which he had fallen during a chase and two white officers told investigators that Pryor was not involved, and in fact they struck the suspect. Initially, Pryor had received finding of unsustained, which was later changed to unfounded on appeal.

• Johnson said a Greensboro police captain violated the state’s personnel privacy law by pulling Officer Frances Banks’ personnel file so that she could compare her with another officer for the purpose of finding deficiencies and blocking her promotion.

• Officer AJ Blake was ordered into a police car at the direction of Assistant Chief Anita Holder after he was observed waving at Jorge Cornell of the Latin Kings, in alleged violation of the departmental directive against associating with a known offender, and threatened with dismissal.

• Officer Robert Reyes reported another officer for abuse of force.

• Capt. Charles Cherry helped all four officers file grievances.

• Chief Tim Bellamy, then nearing retirement, told a meeting of senior-level officers at the police department that if anyone there thought there was corruption, then could turn in their badges “and get the hell out.”

• Assistant Chief Dwight Crotts questioned Cherry about helping other officers file grievances, which is not against any departmental directive.

• Cherry was ordered to undergo a fitness-for-duty evaluation. Psychiatrists ultimately determined that he was, indeed, fit for duty.

“Why was Captain Cherry fired?” Johnson asked. “Because he challenged the GPD’s subculture of corruption and double standards by filing legitimate grievances. That’s our conclusion.”

Johnson also reviewed the case of Cornell, leader of the North Carolina Latin Kings. Johnson said that between 2005 and 2008, Cornell “sought to work with police officers,” noting that he had learned of it earlier in the same day. After the meeting Cornell said he had been approached by Detective Ernest Cuthbertson – at the time the only officer assigned to monitor gangs. Cornell said he initially took a positive view of working with the police.

“That was my goal: To get into the community and let them know that we’re not this organized criminal entity, and also let them know that we’re not going to stand for police brutality,” Cornell said.

Cornell said Cuthbertson wanted him to get his members to sit down with representatives of the Greensboro Police Department and the Guilford County Sheriff’s Office “so they could learn about our leadership structure and pounce on us.”

Cornell said he rebuffed Cuthbertson’s request, and the relationship deteriorated from there.

Because of police harassment, Johnson said many members of the Latin Kings have been “on the margin of being homeless,” and have struggled to remain employed because of having to expend time and money fighting false charges and because of contending with police spooking employers by visiting them and mentioning that their employers were gang members. As a result, Johnson said the Beloved Community Center, Pulpit Forum and Greensboro NAACP have had to provide financial support for members of the group.

During a period of the meeting opened up for comments and discussion, Johnson and the Rev. Randall Keeney brainstormed about the possibility of planning what Johnson termed “a spiritual mass community meeting.”

“As an organizer, my concern is if you don’t have a next step, then you just had a nice meeting,” Johnson said.

Continued GPD lawsuit reading

This makes the third installment in my analysis and review of US District Court Judge Thomas D. Schroeder's orders on federal discrimination claims by black Greensboro police officers.

Previous installments here and here.

# # #

Schroeder holds that the defendants’ motions to dismiss the plaintiffs’ amended complaint are denied “on the merits as to each plaintiff’s equal protection claim.”

# # #

Schroeder:

The court holds that plaintiffs have not plausibly stated a claim for invasion of privacy by intrusion into seclusion against Wade in her individual capacity, and this claim will be dismissed.

# # #

Schroeder dismisses gross negligence claims against former police Chief David Wray and former Deputy Chief Randall Brady for the release of personnel information, apparently in reference to journalist Jerry Bledsoe’s “Cops in Black and White” series published in the Rhinoceros Times from 2006 to 2009.

Having considered plaintiffs’ pleadings, the court is unable to locate any factual allegations in either complaint plausibly stating a gross negligence claim based on the disclosure of protected information. For example, plaintiffs allege that Wray and Brady routinely disclosed unspecified personnel information about unidentified black officers to a news reporter.

# # #

The summary of Schroeder’s order in regards to the individual defendants, not surprisingly, contains the essential significance of the decision:

The net effect of the court’s various rulings is that plaintiffs may file their proposed SAC as to, and may proceed on, the following claims: (1) plaintiff’s breach of contract claim against the city (Count 1); (2) plaintiffs’ hostile work environment claim under section 1981 against the GPD defendants in their individual capacities (Count II in part); (3) [Steve] Evans’ disparate treatment claim under section 1981 against the GPD defendants in their individual capacities (Count II in part); (4) [Lawrence] Alexander [Jr.]’s disparate discipline claim under section 1981 against the GPD defendants in their individual capacities (Count II in part); (5) plaintiffs’ equal protection claim under section 1983 against the GPD defendants in their individual capacities (Count V in part); (6) Hinson’s Fourth Amendment claim under section 1983 against the GPD defendants in their individual capacities (Count V in part); (7) Hinson’s invasion of privacy claim against the GPD defendants in their individual capacities (Count VI in part); and (8) plaintiffs’ tortuous interference claim against [Councilwoman Trudy] Wade in her individual capacity (Count VII in part).

# # #

That concludes my reading of the orders on claims against individual defendants. I'll pick up where I left off on the orders on claims against the city of Greensboro after I take a break and attend to some other matters.


# # #

Schroeder declines to dismiss a Title VII discrimination claim by plaintiff Willie Parker that the city contended was not filed with the Equal Employment Opportunity Commission within the prescribed time frame.

Some background on Parker’s allegation:

Parker filed his EEOC Intake Questionnaire on May 5, 2006. The questionnaire alleges that “for no apparent reason” Parker’s photograph was shown to citizens and these citizens were asked about Parker’s involvement in illegal activity and associations with a drug dealer.

# # #

Disparate treatment claims made by Alexander and Evans may go forward. Schroeder writes, “The city apparently concedes that plaintiffs Alexander and Evans have alleged facts sufficient to state disparate treatment claims.”

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.

# # #

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.

# # #

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.

# # #

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.

# # #

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.

# # #

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.

# # #

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.

# # #

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.

# # #

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.

# # #

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

# # #

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.

# # #

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.

Judge allows some of black officers' claims to go forward

US District Court Judge Thomas D. Schroeder ruled on defendants' motions to dismiss in a federal discrimination lawsuit filed by 39 black Greensboro police officers. Some of the claims will go forward; others will not.

The two orders handed down by Schroeder are available here and here.

I'll be reading them and providing analysis this evening.

# # #

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.

# # #

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.

# # #

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.

# # #

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.

# # #

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.

# # #

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.”

# # #

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."

# # #

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….

Greensboro senior staff address firing of black officer

Young

I had the opportunity to sit down this afternoon with senior staff in the Greensboro City Manager’s Office today to discuss the termination of Greensboro police Officer Joseph Pryor, one of a cohort of employees whose protestations has put the city in the hot seat in recent months. Unfortunately, City Manager Rashad Young and Assistant City Manager Michael Speedling’s remarks did not come in time to meet the press deadline for tomorrow’s story (retroactive link), but these are the most extensive statements any senior staff member has made to me on the topic since early July, and I count that as a victory.

Pryor has said in an appeal document submitted to Young that a questioned document investigation conducted by Charlotte-Mecklenburg Police Department employee Jeffrey Taylor did not have an adequate scope to determine whether Pryor had signed an Notice of Administrative Investigation form. Pryor alleged that his signature was photocopied, scanned, forged or otherwise improperly placed on the form. First Assistant Chief Dwight Crotts and then Young found Pryor’s statement to be untruthful, and fired him as a result.

Young pointed to his termination review letter, which states, “Mr. Taylor concluded that the Notice of Administrative Investigation form contains your original signature and was not photocopied, scanned, forged or otherwise improperly placed on the form. Based on the audio recording of your interview with Cpl. [Jack Steinberg], the relative importance of the Notice of Administrative Investigation form, and most importantly, the conclusions of the forensic document examiner, I conclude that you did in fact sign the document in question.”

In an interview with YES! Weekly last week Pryor disputed Young’s statement that “the complainant described the officer who allegedly kicked him as being ‘6’0”-6’2” in height, dark complexion, with a close haircut” in a use-of-force investigation conducted on him. Those qualities describe Pryor. The former police officer continues to allege that the description was added to investigative documents after the fact and was never given by Lipscomb.

Pryor provided YES! Weekly with a copy of a criminal investigation memo authored by Cpl. Cheryl Cundiff that states that the complainant, Terrance Lipscomb, “was unable to give a description of the officer that he alleged kicked him,” and allowed me to listen to a recording of an interview conducted with Lipscomb by Sgt. Shawn Barnes for an administrative investigation in which the complainant.

“That was not the only interview with Terrance Lipscomb,” Young said. “That issue was reinvestigated and reconfirmed. We went out and interviewed him again and he confirmed well to [internal affairs]’s satisfaction.

Young quoted Lipscomb as saying in the re-investigation: “Yep, 6-2. And that’s what I said the first time.”

Pryor told YES! Weekly last week that the city has not investigated two allegations made by him, including that Barnes added his physical description. Later, Pryor provided a copy of a June 21 memo authored by then-Chief Tim Bellamy stating that the complaint against Barnes was investigated by Lt. MO Brodie.

“I concur there was insufficient evidence to support a violation of departmental directives,” Bellamy said.

Young also dismissed Pryor’s contention that professional standards should have dismissed Lipscomb’s complaint when two white officers who were on the scene at the time stated that Pryor had not kicked Lipscomb and that they, in fact, had struck him and piled on him.

“That’s easy,” Young said. “The complainant said by description who kicked him in the stomach. The fact that we had two other people who said, ‘I struck the blows,’ but the complainant says, ‘It’s this person,’ we can’t change the focus of the investigation because of that…. That is not even close to being an appropriate response. It’s all well and good that other officers said, ‘This is what he did and this is what I did.’ It turns out the citizen didn’t tell the truth. I think we would be in a world of hurt if we dismissed allegations on that basis.”

Speedling said he disputes an allegation repeatedly made by Cherry and Pryor that Speedling stated that the investigation conducted on Pryor was the result of either “discrimination or incompetence.”

Speedling said today that he told Pryor during a meeting earlier this year that “if, in fact, what you’re saying is true,” then that would be discrimination or incompetence.

“It has been allowed to perpetuate itself,” Speedling said. “And it’s been false.”

Speedling said that what prompted the remark about “discrimination or incompetence was Pryor’s statement about the allegedly fabricated description of him.

“I remember you telling me: ‘It ain’t on the tape,’” Young remarked to Speedling today.

Since that time, the two have concluded that Lipscomb did give that description.

Fired Greensboro police officers allege criminal violations in department

Charles Cherry (left) and Joseph Pryor, pictured at the Beloved Community Center, were fired from the Greensboro Police Department in August.

A recent complaint filed by Charles Cherry, with Joseph Pryor, contends that Greensboro police Chief Ken Miller is obligated to initiate a criminal investigation of Assistant Chief Anita Holder, having read a flier alleging that Holder committed the offense of solicitation to commit a felony or misdemeanor.

Cherry and Pryor are former Greensboro police officers who were fired in August.

The elements of the alleged offense submitted by Cherry are as follows: “Assistant Chief Holder solicited me to pursue a medical retirement; Assistant Chief Holder is not a medical professional; Assistant Chief Holder knew or should have known that I had no disability and had not been diagnosed with a disability, at the time she solicited me to take a medical retirement.”

Chief Ken Miller told me earlier this week: “The problem is that there is no substance to the allegation. Just look at Cherry’s letters in their totality. I don’t need to say anything more. And quite frankly I won’t. I’m done addressing Charles Cherry. Charles Cherry has litigation as his next avenue of appeal. He chooses not to pursue it. I encourage him to pursue it.”

Assistant City Manager Denise Turner said the city manager’s office would also decline to comment.

Cherry contends that under the Departmental Directive 1.5.12 Duty Responsibilities, the department is required to investigate the allegation. The directive states,

Employees shall perform all duties as required by law and competent authority, regardless of their specific assignment or job description. They shall perform their duties in such a manner as to effectively and efficiently carry out the functions and objective of the department. Employees assigned to specialized duties are not relieved of the responsibility of taking prompt action in the matter of any violation of law rules of the department coming to their attention, unless specifically authorized by competent authority, directive or procedure.

Cherry’s most recent complaint also alleges a conspiracy to unlawfully arrest Pryor and him at a community meeting at Smith Senior Center earlier this month for the purpose of discrediting them.

“Police Chief Ken Miller’s plan was to ask me and citizen Pryor to leave, once we asked a question, and not allow us to respond ‘quick enough.’ Chief Ken Miller would then order the arrests of me and citizen Pryor, charging us with 2nd degree trespass."

Numerous police officers attended the meeting, although Miller and Lt. Mike Richey, commander of the Eastern Patrol Division, handled the vast majority of the presentation. The complaint references a brief exchange between Cherry and Assistant Chief Ron Rogers, displaying a slice of police vernacular.

Cherry: “Man, it’s thick in here. What’s up, ya’ll trying to do us?”

Rogers: “Naw, Richey just wanted to bring his CRT team.”

I asked Jeffrey Welty, a faculty member at the UNC School of Government with expertise in criminal law and procedure, whether there is any statutory requirement that the police department investigate Cherry’s allegations. He responded that he could not comment on departmental directives, but as a matter of law the answer is no.

“State law doesn’t create an obligation on the part of law enforcement to investigate every time a citizen alleges a violation of law,” Welty said. “In deciding whether to investigate a particular complaint, law enforcement would consider such factors as who’s doing the complaining, the seriousness of the alleged crime, whether there’s other evidence that would suggest the complaint is well founded, what else they have going on right then and so on.”

Cherry also continues to insist that the department refuses to investigate an allegation that Assistant Chief Dwight Crotts violated the state personnel privacy act by directing speaking to a subordinate who is conducting an internal investigation on another officer about information from Cherry’s personnel file.

I asked Howard Neumann, an assistant district attorney in the Guilford County District Attorney’s office, if Cherry’s allegation against Crotts was something his office would like to see investigated so they could make a determination about whether to prosecute.

“All of his allegations have to do with an employment issue, and that’s not something we would be interested in looking into,” Neumann said. “It sounds like an internal police department matter, which I’m confident they can look into and resolve in an appropriate fashion.”

What about the allegation that Holder violated the state law against solicitation to commit a felony or misdemeanor?

“He doesn’t allege anything that I think warrants a criminal investigation,” Neumann said.

Cherry and Pryor received letters from City Manager Rashad Young turning down their termination appeals. Courtesy of the News & Record, the letters are available here in a combined document.

The city manager cites a handful of reasons for Cherry’s dismissal.

“You acknowledge that you agreed to keep confidential the details of the Leadership Team meetings held during 2007 and 2008,” Young writes. “However, you alleged that discriminatory comments were made in the meetings; and therefore, you were no longer required to respect the confidentiality of the meetings. I do not find your reasoning to be persuasive.”

Cherry had continuously alleged in various written complaints that “in a command staff-only meeting, Captain JE Wolfe stated that he did not trust the individuals on the EEOC lawsuit.”

Names of police employees are redacted in Young’s termination letter to Cherry, but their identities can be contextually inferred.

“Captain [Wolfe] stated that he expressed concern regarding the impartiality of decision making of command-level individuals involved in the EEOC lawsuit," Young writes. "This statement does not constitute discrimination or retaliation as those terms are defined by federal or state law or city policy.”

The two command-level employees signed on to the EEOC complaint, which has now become a federal discrimination lawsuit, were Cherry and Rogers. They remain plaintiffs.

Young also faults Cherry for reading his response to a fitness-for-duty recommendation aloud to the eastern patrol division lineup in June, calling the act “inappropriate and disruptive.” Two psychologists ultimately determined that Cherry was mentally sound.

Later, Cherry sent out a mass e-mail to fellow police employees explaining his administrative status.

“This issue serves to illustrate your lack of discretion and judgment,” Young writes. “You fail to realize that as a command-level officer you are expected to play an instrumental role in maintaining an efficient workplace. Your e-mail and personal responses to the masses regarding your supervisors’ decision to evaluate your fitness for duty undermined the command structure. An effective force requires the respect, self-discipline and judgment of its officers. By expressing your concerns to your subordinates, you disregarded and undermined the chain of command. Your comments, without the benefit of a response from your supervisors only serve to bring rancor, speculation and distrust to the operation and command hierarchy of the department.”

Young also noted, “You have repeatedly stated that [Tim Bellamy] was a complainant on an EEOC lawsuit against the city of Greensboro. Furthermore, you contended that [Bellamy] withdrew his name from the lawsuit just prior to his appointment as [chief]. The charge of truthfulness is unsubstantiated based on the disputed testimony of [Bellamy] and reserve officer [Stephen L. Hunter].”

“There is no evidence, whether disputed or otherwise, that suggests that [Tim Bellamy] was ever a complainant on an EEOC lawsuit against the city,” Young continues. “Moreover, there is no evidence that [Bellamy] withdrew from an EEOC lawsuit in exchange for his promotion to [chief]. This allegation was not confirmed or corroborated and you did not verify the authenticity of this allegation. This issue yet again demonstrates a lack of discretion and judgment from a command-level officer of the GPD.”

While no lawsuit had been filed at the time of Bellamy’s involvement, contrary to the city manager’s assertion, a copy of Hunter’s notarized letter submitted by Cherry states, “During the period surrounding the resignation of former chief of police David Wray I was one of a few officers tasked with collecting EEOC complaint forms from black police officers who felt they had been victimized by discriminatory or racist practices by David Wray or those within his administration. Among the complaint forms I collected was one from then Major TR Bellamy.”

Hunter said that when Bellamy was appointed acting chief he destroyed the complaint form according to Bellamy’s wishes before turning it over to the black officers’ lawyers.

Young made the determination that Cherry violated the department’s Malicious Criticism and Gossip directive by commenting on Bellamy’s involvement with the EEOC matter, adding, “This issue yet again demonstrates a lack of discretion and judgment from a command-level officer of the GPD.”

The city manager appears to walk a tightrope on the matter of Cherry filing grievances on behalf of both himself and other department employees.

“Every employee has a right to file grievances and raise concerns they believe affect their work environment,” Young wrote. “As an employer, we have an obligation to review and make determinations relative to those claims. However, employees also have an obligation to exercise sound judgment and use good discretion as they pursue or advance those grievances in a reasonable manner.”

Among those who received assistance from Cherry on grievances was another plaintiff in the federal discrimination lawsuit, Officer Joseph Pryor.

Young states in his final appeal letter to Joseph Pryor, dated Oct. 7, that the relevant questions in the case are whether the officer had violated the department’s truthfulness directive by continuing to state that his signature had been improperly placed on a Notice of Administrative Investigation form and whether he violated the directive on malicious criticism and gossip by continuing to press the issue. In both cases, Young determined that the answer was yes, and that termination was the appropriate punishment.

Pryor has continuously asserted that the professional standards division discriminated against him in its handling of an administrative investigation into whether he kicked a citizen arrested at Smith Homes in the stomach in January 2009.

“Your support for this contention, in part, is [Assistant City Manager Michael Speedling’s] statement that the results of the use of force investigation against you were due to PSD’s ‘discrimination or incompetence,’” Young writes. “However, you fail to mention that [Speedling] made that statement based on your claim that the complainant failed to identify you as the officer who allegedly assaulted him. The facts of the use of force investigation are clear. The complainant described the officer who allegedly kicked him as being ‘6’0”-6’1” in height, dark complexion, with a close haircut.’ The complainant made this description to investigators in his initial interview and in a subsequent interview. As you know, you were the only African-American officer at the scene. Accordingly, PSD’s investigation was neither the result of discrimination nor incompetence.”

Pryor told YES! Weekly that those details simply were not in the description provided by the complainant, contrary to Young’s assertion, and only cropped up after the criminal investigation division completed its probe to determine if charges should be filed and passed the case along to the professional standards division, which handles possible administrative violations.

“There’s no ‘six-foot-one, dark complexion’ in there,” Pryor said. “Corporal Cundiff, who conducted the criminal investigation, said the subject was unable to give a physical description. And then in the administrative investigation it became ‘approximately six-one, dark skinned.’”

As Young notes, Pryor was ultimately “vindicated of any wrongdoing” in the administrative investigation. Yet in the process, Pryor contends, Sgt. Mike Loy disregarded available information that would have exonerated him and, if anything, shifted suspicion to the two white officers, who were also on the scene at the time of the arrest, and who also were ultimately cleared of wrongdoing.

“You have two Caucasian officers saying they struck the guy, and I didn’t touch him,” Pryor said. “Why do you want to continue to investigate me after two people said, ‘No, Pryor didn’t strike him?’

“I have medical records to prove that I couldn’t do what I was accused of doing,” he said. “I was out for five months after that with a strained [medial collateral ligament of the knee].”

Cpl. Jay Atkins indicates in a professional standards interview conducted by Loy in June 2009 that police had been monitoring Smith Homes for open-air drug sales when Cpl. WD Coble decided to stop Terrance Lipscomb after observing him throw something down on the ground. Atkins patted Lipscomb down, and Lipscomb ran. Several officers gave chase, including Pryor.

Officer HW Cox, who arrived on the scene a little later is heard in an audio recording telling Loy from a separate interview conducted in June 2009 that he saw Pryor “hit the subject with his two hands” during the chase, causing both the officer and the suspect to fall to the ground. Cox said soon afterward he watched Atkins come over and jump on Lipscomb. Atkins told Loy he pinned Lipscomb to the ground by kneeling with one knee on the suspect’s back and the other on the ground.

Cox said when he caught up with Atkins and Lipscomb, the suspect had placed his hands under his stomach so that the arresting officers could not handcuff him. Cox used a method prescribed in training known as super scapular strikes to bring Lipscomb into compliance. In plain English, it means he hit him in the shoulder blades to make him pull his arms out.

“I hit him with the super scapular strikes,” Cox can be heard saying. “I issued the strikes and his arms came out, and we got him cuffed, adding that a number of officers “piled up on” Lipscomb “pretty deep” to bring the suspect under control.

Even though Atkins acknowledged placing his knee on the suspect’s back and Cox candidly discussed hitting him in the shoulder blades, the interviews remained focused on whether Pryor kicked him in the stomach, as alleged by Lipscomb.

That assertion was corroborated by a civilian witness, said Cpl. Jack Steinberg, who also worked on the administrative investigation.

“I don’t know what she’s saying because he was on the ground holding his knee,” Cox is heard saying in an audio recording. “You might want to talk to her about that because she’s lying to you.” He added later: “Pryor had no contact with him at all. The only ones who had any contact with him at all is me and Jay.”

Cox stated unequivocally in response to Steinberg’s questions that he did not observe Pryor kicking Lipscomb.

After the arrest, Lipscomb was placed in a squad car, at which point officers on the scene said he first made the allegation about Pryor kicking him in the stomach. Cox recalled that Pryor was in such bad shape that he drove him to the hospital.

Atkins was asked whether Coble was notified about the allegation made by Lipscomb.

“We did notify Corporal Coble, told him that the guy was alleging that Pryor kicked him,” Atkins said. “Which I told him he didn’t kick him because Pryor was never even around there to make contact with him.”

Loy said today that he could not comment on the matter because all the information is in Pryor’s personnel file, and therefore protected from public disclosure.

Pryor continuously filed grievances up his chain of command to Young himself, urging them to review the professional standards division’s handling of the investigation.

“I was saying, ‘When was Mike Loy going to be investigated for omitting information from an investigation?’” Pryor said. “‘When was Shawn Barnes going to be investigated for adding my physical description?’ To this day, that hasn’t been investigated.”

Barnes could not be reached for comment.

Pryor also complained that his signature was forged, copied, scanned in or otherwise improperly placed on a Notification of Administrative Investigation form. Then Chief Tim Bellamy assigned Capt. Therron Phipps, commander of the operational support division, to conduct the investigation. He found no wrongdoing on anyone’s part.

“I reviewed the audio recording of Cpl. [Steinberg] with you,” Young states in the appeal letter. “He states that he is giving you the Notice of Administrative Investigation form and asks that you read and sign the form. There is a pause when presumably you are reading the form. I then heard the sound of writing. At no point during the recording do you refuse to sign the form or make any comment about the structure of the form or the presence of a signature of any person other than Cpl. [Steinberg]. It is reasonable to conclude that you did in fact sign a Notice of Administrative Investigation form, as requested by Cpl. [Steinberg].”

Pryor responded in an interview with YES! Weekly: “What he neglects to tell you is that the person whose name is on the document didn’t interview me. It had Sgt. Barnes’ name on it when he had already been transferred out of that unit. The person who interviewed me was Cpl. Steinberg. They said they were in transition, and Sgt. Barnes left the notification. If Steinberg is in training, why is he conducting an interview with me? Why would Sgt. Barnes leave a notification? When you sign a notification as an investigator, you’re signing it to say you witnessed me signing it. If you left it for me to sign, how could you witness me signing it?”

Young dismissed the significance of the notification.

“It follows then that either Sgt. [Barnes’] signature was added to the form after you signed it or your signature was added on a different Notice of Administrative Investigation form bearing Sgt. [Barnes’] signature. Neither scenario is reasonable. This form has no constitutional or legal value. The GPD uses this form to notify the employee of the scope of the investigation. There would be no compelling reason to add your signature to this form.”

Young writes that Pryor’s continued assertions that he did not sign the form are untruthful. The city manager also found the police officer in violation of the malicious criticism and gossip directive on the basis that “your allegations of discrimination and incompetence against the PSD tended to impair the operations of the department by asserting that its administrative investigations are dishonest and discriminatory.”

Pryor’s colleague, Charles Cherry, has leveled the accusation of untruthfulness at numerous employees in the police department, along with staff in the city manager’s office and human resources. In that sense, the city manager’s high-minded words at the end of the appeal letter sound as if they could just as easily reflect the sentiments of those on the other side of the dispute.

“A police officer has the ability to deprive a person of life, liberty and property based in large part on the credibility of their word,” Young writes. “Accordingly, police officers must be absolutely truthful in all matters. An officer whose truthfulness is at issue is unfit to exercise the powers vested in the police department.”

Citizen Cherry

Former Greensboro police Cap. Charles Cherry discloses in a memo that City Manager Rashad Young has turned down his termination appeal. Cherry had been commander of the department's Eastern Division until the time he was placed on administrative duty status in June. He is the highest ranking officer to have been pushed out of the department this year.

Cherry announces in the memo that a community meeting will be held on Nov. 11 at 6 p.m. at Bethel AME Church to "discuss police accountability and professionalism, among other things." Meanwhile, the police department holds an official community forum on the same night for citizens in the Western Division at Lewis Recreation Center. The main focus of that and three other community meetings will be crime statistics and call prioritization, but a press release also promises that Chief Ken Miller will "review changes in GPD including mission and core values revisions, the restructuring process, core strategies and discipline process revisions."

Color.

Police turmoil outlined in documents, community meeting to highlight visit to DOJ

A new batch of internal memos related to the administrative turmoil within the Greensboro Police Department arrived in my inbox today courtesy of the Rev. Cardes Brown, president of the Greensboro NAACP.

The documents introduce a new player, Officer Deborah Thomas, currently assigned to the legal support squad. In a Sept. 13 disciplinary appeal to City Manager Rashad Young, Thomas notes that she has a pending Equal Employment Opportunity Commission complaint, and alleges that she has been the subject of a string of "malicious administrative investigations" by Sgt. Jonathan Heard. It might be considered an irony that Heard is a plaintiff in a 2009 federal discrimination lawsuit against the department.

In an Oct. 8 complaint to Young, Thomas alleges that she remains in a "hostile work environment" as a result of Lt. GA Hunt and Sgt. DJ Davis' handling of Thomas' appeal to Young.

A third document reveals that Young upheld the termination of Officer AJ Blake in a Sept. 30 decision. Blake files a complaint as a private citizen and asks Young to investigate his disciplinary treatment. Blake alleges that a scheme was undertaken by police administration to terminate him as a ploy to dodge responsibility for investigating a complaint by Blake about a bogus violation related to the officer waving at Latin Kings leader Jorge Cornell.

Finally, Officer Robert Reyes persists in outlining what he contends is continued discrimination and retaliation in a memo to Young, despite the city manager's determination that the issues be handled within Reyes' chain of command.

Among Reyes' concerns is the handling of a batch of polygraph examinations in a disciplinary process that resulted in his reinstatement following suspension with a recommendation for termination. Reyes cites a statement by Chief Ken Miller quoted in YES! Weekly last month: "I have an opinion about how a polygraph should be administered. They didn't do anything wrong, but it is inconsistent with the way I think it should be used if we're going to treat employees the way they deserve to be treated."

Reyes argues, "Police Chief Miller contradicts himself in his statement to YES! Weekly. If Assistant Chief Crotts used the polygraph in a way that prevents employees from being treated the way they deserve to be treated, then something was done wrong. What is Chief Miller's opinion, on when and how polygraphs should be administered? This information should be shared with the public for transparency within the police department. What does the law and police policy state as it relates to polygraph procedures and administration?"

On Sept. 30, Greensboro police officers, members of the North Carolina Latin Kings street organization, students, pastors and other citizens met with officials at the US Department of Justice in Washington to request a federal investigation of the Greensboro Police Department. Greensboro Justice Summer will provide details during a community meeting tomorrow at 6 p.m. at Bethel AME Church, located at 200 Regan St.

Three GPD officers appeal discipline to city manager

Officer Robert Reyes, Officer AJ Blake, Capt. Charles Cherry and Officer Joseph Pryor (l-r) attended a community meeting held to build support for them on Sunday.

Three Greensboro police officers, including two who have been terminated, have filed disciplinary appeals to City Manager Rashad Young.

I. Cherry

Capt. Charles Cherry was terminated on Monday by then-interim Chief Dwight Crotts for sustained violations of the department's general conduct, malicious criticism and gossip, and discretion directives, according to Crotts' personnel order.

As he has in the past, Cherry acknowledges in his appeal that he did take a comment by Capt. John Wolfe to the effect that he did not trust officers on a federal discrimination lawsuit out of the room after signing a confidentiality agreement, but Cherry contends, "The moment the comment became part of a discrimination allegation, that fact outweighed the confidentiality agreement."

Cherry responds to the finding that he violated the department's malicious criticism and gossip directive by noting that "interim Chief Crotts gave no reference in the Disciplinary Action Taken Memo as it relates to how I violated" the directive.

In responding to the third sustained violation, Cherry writes, "It should be noted that I was never originally alleged to have violated Departmental Directive 1.5.9: Discretion. Interim Chief Crotts would have to show the elements of discretion, and how I violated the specific directive."

Cherry quotes from a notification from Sgt. Alan McHenry, a professional standards investigator, outlining how he was placed under investigation for sending an e-mail to subordinate officers explaining his administrative status in the context of a pending fit-for-duty evaluation (later resulting in the captain receiving a clean bill of health from two different psychologists).

Cherry quotes McHenry as saying, "To provide this statement to members of the division under his command, Captain Cherry has encouraged their focus on his personal disagreements with personnel decisions made by his supervisors regarding his actions. In doing so, he has raised questions within the department regarding the competency of members of the command staff, which cannot be answered because of personnel privacy laws."

Cherry responds: "The e-mail does not speak of any disagreement I have with the decisions made. The e-mail relays accurate information regarding my fitness for duty and being banned from Maple Street. Mr. [Michael] Speedling [assistant city manager] has stated that an officer was the victim of 'discrimination or incompetence' by professional standards. Captain [Jane] Allen is the commander and approves all investigations conducted by professional standards, to include the investigation Mr. Speedling referred to. That would make Captain Allen incompetent, according to Mr. Speedling. Why would it not be expected that the citizens and officers would not question the competency of GPD command staff, especially if Mr. Speedling the assistant city manager over police makes such a statement?"

Cherry quotes McHenry as saying, "Due to Cherry's information being provided to the media, the Greensboro Police Department's credibility and ability to perform basic functions to the community are called into question. This is evidenced by comments from people in the community. Because this matter is a personnel issue, and therefore subject to NCGS 160A-168: Privacy of Employee Personnel Records, the department and city are unable to respond to the questions Captain Cherry has raised resulting in heightened community concern."

Cherry responds, in part: "The fact that it was given to the media is not a problem, because it is accurate."

Cherry references an e-mail from Councilman Zack Matheny, which he says "raises a myriad of concerns," including, "How can constituents simply asking a councilmember to investigate reports of corruptive behavior in our police department be harassing?

Cherry cites a News & Record article stating, "Young said he created the position (Michael Speedling's position) to deal with one of the city's most pressing issues — discipline and unresolved personnel problems, including what Young said were too many US Equal Opportunity Employment discrimination complaints."

Supported by a Dayton, Ohio area news story, Cherry writes, "Mr. Young, while in Dayton, if internet sources are correct, you have dealt with the Department of Justice, before, relating to a racial discrimination suit settled for four hundred fifty thousand dollars ($450,000)."

Supported by a post by a Dayton blogger, Cherry writes, "Mr. Young, if internet sources are correct, Mr. Bill Hill was paid for one hundred forty five thousand ($145,000) for wrongful termination."

Cherry also addresses an allegation that he violated the department's truthfulness directive, which Crotts eventually found to be not sustained. Cherry asks that the finding be changed to unfounded.

"Chief [Tim] Bellamy was caught lying to the board during the hearing," Cherry writes. "Former Chief Bellamy stated under oath that he had never been discriminated against while at the GPD, and had never completed an EEOC complaint form. Reserve Sergeant Steve Hunter, Attorney Ken Free and Federally Filed litigation paperwork states to the contrary of former Chief Bellamy." (For good measure, Cherry throws in a statement from Greensboro NAACP President Cardes Brown.

II. Pryor

Officer Joseph Pryor was terminated by Crotts on Aug. 26 for sustained violations of the department's truthfulness and malicious criticism and gossip directives.

Pryor's appeal does not explicitly state the department's articulated allegation that he violated the truthfulness directive, but references "the scanned, forged, copied or otherwise improper placement of my signature on a document."

Pryor states that "this same investigation was reviewed by Mr. Speedling who stated that the results was due to 'discrimination or incompetence' by professional standards."

Pryor says the sustained violation of the malicious criticism and gossip directive is also related to "me stating in grievances that someone in professional standards forged, scanned, copied or improperly placed my signature on a document."

Pryor writes to Young, the city manager, about a July 26 conversation between the two: "I informed you that I came forward with allegations regarding an investigation conducted on me. The findings in the investigation was changed (in my favor) from not sustained to unfounded. All of my allegations were not fully investigated and the investigation was then turned on me, improperly alleging that I was untruthful. The same allegation (regarding the document) was in my original grievance, in which the investigation was changed to unfounded. You, Mr. Young, replied, 'You kept pushing it.'"

III. Reyes

Officer Robert Reyes received a division-level reprimand from Crotts on Monday based on sustained violations of the department's conduct towards public and employees and discretion directives.

Reyes contends in his appeal that "interim Chief Crotts condoned the monitoring, following and 'shadowing' of me by officers of my rank and time in grade. The officers, unknown to me, took notes on my activities and gave the information to my supervisor, (then) Sergeant Barwick. Sergeant Barwick then used the information, detrimentally against me (with the ultimate goal of terminating me). Sergeant Barwick never confronted me on the information or attempted to foster my improvement. These actions were because I reported what I believed to be excessive force by a fellow officer. [emphasis mine]

An alleged violation of the truthfulness directive was found to be not sustained by Crotts. Reyes is appealing to have it changed to unfounded.

"I was truthful in all information given as it related to the investigation of Officer Pinson stating that Captain Cherry had been fired [in mid-June]," Reyes writes.

Reyes says, "Sergeant Isom and Captain Smith allowed a 'Gestapo Style' interrogation of me by Corporal Oligmueller. The 'Gestapo Style Interrogation' (which was administrative in nature) included: A polygraph that was not warranted because Captain Cherry was never interviewed, a total of six (6) hours of interrogation (the issue being one question (Did Officer Reyes hear Officer Pinson say that Captain Cherry had been fired), utilizing a polygraph machine with inoperable parts (non-functioning printer as stated to me by Corporal Oligmueller)."

The appeal continues, "Sergeant Isom and Captain Smith allowed a 'Gestapo Style Interrogation' of Officer Royal (which was administrative in nature), which included: A total of approximately six (6) hours, Officer Royal, body limp, was called a lie [SIC] approximately twenty (20) times, Officer Royal's job was threatened, asked the same question approximately thirty three (33) times, Officer Royal was lied to in attempts to get Officer Royal to change his (Officer Royal's) story, Officer Royal was called 'LYNCHMAN' by Corporal Oligmueller during Officer Royal's polygraph. Assistant Chief Ron Rogers and Captain BL James can attest to the inhumane treatment of Officer Royal. The polygraph of Officer Royal is on video."

In contrast, Reyes says, "Officer Pinson had taken medication (for anxiety) which relaxed his nerves approximately two (2) hours before taking the polygraph. Corporal Oligmueller had knowledge of this, and still conducted a tainted test."

Editorial note: Two independent, anonymous sources state that both Reyes and Royal failed the polygraph, while Pinson passed.

As for the two violations that were sustained against Reyes, the officer contends, "I was not originally charged with conduct towards public and employees. Interim Chief Crotts would have to elaborate on why I was charged with this particular violation.... I was not originally charged with discretion. Interim Chief Crotts would have to elaborate on why I was charged with this particular violation."

Reyes writes, "Lieutenant Brodie and Captain Smith informed me that I may be extended an additional ninety (90) days as it relates to the professional standards program. It should be noted that in my third quarter, fourth quarter (5.69 (Level 3)), and annual evaluation (5.16 (Level 3)), I am clearly performing at an acceptable level. Interim Chief Crotts through discrimination, retaliation and fostering a hostile work environment placed me in the professional standards in an attempt to terminate me.

"Please have interim Chief Crotts release me from the program immediately upon my physical return to regular duty."