Alexander v. City of Greensboro

LAWRENCE ALEXANDER, JR., et al., Plaintiffs, v. THE CITY OF GREENSBORO, et al., Defendants.

LAWRENCE ALEXANDER, JR., et al., Plaintiffs, v. THE CITY OF GREENSBORO, Defendant.

1:09-CV-00293

1:09-CV-00934

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

December 18, 2013

MEMORANDUM OPINION AND ORDER

THOMAS D. SCHROEDER, District Judge.

These related employment actions, originally involving forty plaintiffs, are before the court on defendants' motions as to the claims of the two remaining plaintiffs: Charles Edward Cherry and Joseph Pryor. Defendants City of Greensboro ("the City"); David Wray, Randall Brady, and Scott Sanders, all officers in the Greensboro (North Carolina) Police Department ("GPD"); and former Greensboro Councilmember Dr. Trudy Wade move for summary judgment pursuant to Federal Rule of Civil Procedure 56 in case 1:09CV293 (Docs. 179, 181, 183); and the City movesfor summary judgment in case 1:09CV934 (Doc. 104). Wray, Brady, and Sanders also move to strike the appendices submitted by the thirty-eight other original plaintiffs in case 1:09CV293, which are relied upon by Cherry and Pryor, on the ground they violate this court's August 5, 2013 briefing order (Doc. 261), and the City moves to strike Cherry and Pryor's pro se response brief in case 1:09CV934 on the ground it also violates the court's prior briefing order and this district's local rules (Doc. 191).

For the reasons set forth below, the motions for summary judgment will be granted, the motions to strike will be denied as moot, and the actions will be dismissed.

I. BACKGROUND

A. Procedural History

These cases arise from the race discrimination claims of forty current and former black officers of the GPD. All claims are based on events that occurred when Wray (white) was Chief of Police (2003-'06),¹ Brady (white) was Assistant Chief (2003-'04) and then Deputy Chief (2004-'05), and Sanders (white) was an investigator in GPD's Special Investigation Division ("SID") (2001-'06). Wray resigned on January 9, 2006; Brady retired onDecember 1, 2005; and Sanders was reassigned on January 12, 2006. (See Doc. 192 in case 1:09CV293 at 10.)²

In case 1:09CV293 ("Alexander 293" or the "Section 1981 case"), forty current and former GPD officers claimed racial discrimination based on multiple theories. Since that time, all plaintiffs have proceeded with various iterations of their complaint, and the court has trimmed the claims after various motions by defendants. A more complete history, which is unnecessary for purposes of the present motions, is recounted in Alexander v. City of Greensboro, 762 F. Supp. 2d 764 (M.D.N.C. 2011), and Alexander v. City of Greensboro, No. 1:09-CV-293, 2011 WL 3360644 (M.D.N.C. Aug. 3, 2011).

Following over four and one-half years of litigation and discovery and after the briefing was completed on the pending motions, thirty-eight plaintiffs resolved their claims,³ and what remains before the court in Alexander 293 are the followingclaims by plaintiffs Cherry and Pryor: hostile work environment based on race under 42 U.S.C. § 1981 against Wray, Brady, and Sanders (collectively the "GPD Defendants"); breach of contract against the City (based on a pre-litigation confidentiality agreement); and tortious interference with prospective economic advantage against former councilmember Wade (based on her alleged interference with a settlement offer by the City).

Several months after Alexander 293 was initiated, the same forty plaintiffs sued the City, alleging that the same conduct constituted race discrimination in employment under theories of disparate treatment and hostile work environment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"). (Doc. 1 in case 1:09CV934 ("Alexander 934" or the "Title VII case").) Again, the court trimmed plaintiffs' claims following various motions by the City. See Alexander v. City of Greensboro, No. 1:09-CV-934, 2011 WL 13857 (M.D.N.C. Jan. 4, 2011); Alexander v. City of Greensboro, 801 F. Supp. 2d 429 (M.D.N.C. 2011). The disparate treatment claims have now all been dismissed,⁴ and the thirty-eight other plaintiffs resolved their claims in this Title VII case when they resolved their claims in the companion Section 1981 case. So, whatremains of Alexander 934 are the same claims of hostile work environment made by Cherry and Pryor in Alexander 293 but under the rubric of Title VII.

B. Factual Background

The briefing on the pending summary judgment motions, and thus the development of the factual record, has been complicated by Cherry and Pryor and their counsel. In order to manage the volume of materials for the then-pending forty plaintiffs, the court originally ordered that all plaintiffs' legal arguments be submitted in a joint brief, and each plaintiff was permitted to file separate appendices to include factual arguments and all record evidence unique to him. (Doc. 170 in case 1:09CV293; Doc. 97 in case 1:09CV934.) Coincidentally with the due date for the filing of plaintiffs' briefing, Cherry and Pryor discharged their counsel of record and, without permission of the court, on September 5, 2013, filed their own response brief that ignores the court's briefing order and grossly exceeds the page limitations allowed by the court and this district's local rules. (See Doc. 131 in case 1:09CV934.)⁵ Also on September 5, counsel for plaintiffs filed their master response briefs andrecord evidence and, out of an abundance of caution because they had not been discharged by this court, noted that they were submitting the materials on behalf of all forty original plaintiffs, including Cherry and Pryor. (See Doc. 282 in case 1:09CV293 at 1-2 n.1; Doc. 132 in case 1:09CV934 at 1-2 n.1.)

During hearings on September 17 and October 13, 2013, the court advised Cherry and Pryor's counsel (in the presence of Cherry and Pryor) that, given the then-impending trial date, they would not be discharged until their clients had an opportunity to retain substitute counsel.⁶ Cherry and Pryor eventually engaged substitute counsel who entered an appearance in both cases on November 7, 2013, well after all briefing was completed, the case had been placed on the October trial calendar, and this court had begun review of the pending motions. (Doc. 305 in case 1:09CV293; Doc. 221 in case 1:09CV934.)⁷

Plaintiffs' master response brief for both cases (Doc. 282; Doc. 132 in case 1:09CV934) sets forth several factual bases fortheir claims that the City (in the Title VII case) and the GPD Defendants (in the Section 1981 case) created a racially hostile work environment for all original plaintiffs during Wray's tenure as Chief. Cherry and Pryor proffer a wide range of alleged conduct in their pro se brief, which rambles, overlaps the master response, is at times difficult to decipher, and is devoid of record support. If the court were to rely solely on Cherry and Pryor's pro se brief, a result they presumably intended by filing it, its gross deficiencies would render its adequacy as a response problematic at best for Cherry and Pryor. For that reason and those noted later in this opinion, therefore, the court will consider all materials filed by or on behalf of Cherry and Pryor that contain admissible evidence and argument. Accordingly, the court sets out the factual record from these materials in the light most favorable to these two remaining plaintiffs as non-moving parties. For an even more thorough discussion of the context in which these claims arose, the reader should consult the court's several prior opinions noted earlier.

1. Hostile work environment claims

a. The "black book" and other lineups

Throughout this litigation, plaintiffs' central claim has been that the GPD Defendants maintained one or more "black books" containing photographs of black GPD officers that wereused to falsely implicate plaintiffs and other black officers in criminal wrongdoing. Indeed, it was on this basis that the court permitted plaintiffs' claims to survive initial motions to dismiss. See Alexander 293, 762 F. Supp. 2d at 794-95. Although all plaintiffs have consistently claimed that several such books existed and that they were used to conduct illegitimate investigations of black officers, it is now apparent that plaintiffs lack admissible evidence to support this central claim.⁹

The main "black book" discussed by plaintiffs contains photographs of 19 black GPD officers, including Pryor, among 114 photographs.¹⁰ Defendants admit that such a book existed but argue that it was created as a legitimate aid in the investigation of a sexual assault reported to the GPD by an alleged victim who implicated a uniformed black GPD officer. (Doc. 192 at 23-28.) The record evidence regarding this lineup book is found in Sanders' deposition and its attached exhibits. (Docs. 196-3, 196-4, 196-5, and 198-6) Sanders and Sergeant Tom Fox interviewed the alleged victim, who reported that she was assaulted in the middle of August 2004 by a black uniformedofficer she described as dark-skinned, short-haired, and short in stature.¹³ (Doc. 198-6 at 5-6.) In response, Sanders compiled a lineup book containing photographs of the 19 black officers who were on duty during the timeframe the assault allegedly occurred. (Doc. 196-4 at 5.)¹⁴ However, the alleged victim was not able to identify her assailant from the photographs. (Doc. 196-4 at 10.)¹⁵ Sanders further testified that he did not show this lineup book to anyone but the alleged victim in the sexual assault investigation. (Doc. 196-5 at 4.) Plaintiffs have not produced any admissible evidence to contradict this statement, and any suggestion otherwise is only speculation based on inadmissible hearsay. Moreover, Pryor concedes he was unaware that his photograph was in this line-up book while it was used and did not know about its existenceuntil it "went public" as the result of a newspaper report. (Doc. 114-6 at 24; Doc. 282-2 at 9; see also Doc....