Beck v. City of Durham

129 F.Supp.2d 844

Norman S. BECK, Plaintiff, v. The CITY OF DURHAM, Orville Powell, Individually and in his official capacity as City Manager of the City of Durham; J.W. McNeil, Individually and in his official capacity as Chief of Police of the City of Durham; P. Lamont Ewell, Individually and in his official capacity as City Manager of the City of Durham, Defendants.

No. 1:99CV1142.

United States District Court, M.D. North Carolina.

November 23, 2000.

Joan M. Mitchell, Donald R. Von Hagen, Mitchell Law Offices, P.A., Carey Louise

Ewing, Ewing Law Center, P.C., Durham, NC, for Plaintiff.

Thomas H. Lee, Jr., Newsom Graham Hedrick & Kennon, P.A., Patrick W. Baker, Office of City Attorney, Joel Miller Craig, Newsom Graham Hedrick & Kennon, P.A., Durham, NC, for Defendants.

MEMORANDUM OPINION

BEATY, District Judge.

I. INTRODUCTION

This matter comes before the Court on a Motion to Dismiss, or in the alternative, Summary Judgment [Document # 2] filed by Defendants City of Durham, Orville Powell, and P. Lamont Ewell. This matter is also before the Court on a Motion to Dismiss, or in the alternative, Summary Judgment [Document # 6] filed by Defendant J.W. McNeil.¹ Both motions are directed toward Plaintiff Norman S. Beck's federal claims for race discrimination in violation of 42 U.S.C. § 1983 and 42 U.S.C. § 1981, as well as Plaintiff's state law claims for wrongful termination, negligent hire, negligent retention, negligent supervision, negligent infliction of emotional distress, intentional infliction of emotional distress, tortious interference with contract, and tortious interference with future relations and/or prospective advantage.

For the reasons that follow, Defendants' respective Motions to Dismiss are GRANTED as to Plaintiff's claims for violation of 42 U.S.C. § 1983 and 42 U.S.C. § 1981. Furthermore, as stated herein, because the Court will grant Defendants' Motions to Dismiss as to Plaintiff's federal claims, the Court will not consider Defendants' Motions to Dismiss as to Plaintiff's remaining state law claims. Instead, pursuant to 28 U.S.C. § 1367(c)(3), the Court will decline to exercise supplemental jurisdiction over Plaintiff's state law claims, and dismiss the state law claims without prejudice.

II. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff, a Jewish male, served as a police officer for the Durham Police Department ("DPD") from 1979 to 1996. By the end of his employment with the DPD, he had attained the rank of Sergeant. During the time of Plaintiff's employment, the City of Durham employed Defendant Orville Powell as the City Manager. During this time, the city also employed Defendant J.W. McNeil as a supervisor in the DPD and later as Chief of Police. The city no longer employs Powell or McNeil. Defendant P. Lamont Ewell is the present City Manager.

In 1989, Plaintiff was a Traffic Supervisor and was responsible for DWI enforcement, accident investigation and public awareness. His immediate supervisor was McNeil, who had not yet been promoted to Chief of Police. Plaintiff alleges that during this period, McNeil called Plaintiff to his office and informed him that one of Plaintiff's subordinate officers had written a speeding ticket for Michelle Evans, a personal friend of McNeil's. Plaintiff states that McNeil ordered Beck to void the ticket. Plaintiff alleges that because McNeil's order was in violation of the law and the DPD's General Order Policy on voiding citations, Plaintiff refused to follow the order. Plaintiff states that he informed McNeil that if McNeil proceeded to have the ticket unlawfully voided, Plaintiff would take the matter to the District Attorney. Plaintiff alleges that following this incident, McNeil's treatment of and behavior toward Plaintiff became increasingly hostile and harassing. (Compl.¶ 12.)

Plaintiff alleges that as retaliation for the 1989 incident, McNeil assigned Plaintiff to on-call status twenty-four hours a day, seven days a week with no relief for six years. Plaintiff also alleges that McNeil took Plaintiff's office in the main police building away from him. Furthermore, Plaintiff states that McNeil assigned Plaintiff's units to walking patrol, leaving Plaintiff's unit understaffed and requiring Plaintiff to work long hours. (Compl.¶ 15.) Subsequently, McNeil was promoted to Chief of Police in 1992. (Compl.¶ 4.) Plaintiff states that in addition to the harassment he suffered as a result of his disagreement with McNeil, Plaintiff also suffered retaliation for exposing the actions of McNeil and other officers when those officers attempted to conceal evidence from accident investigations done under Plaintiff's supervision in 1994 and 1995. (Compl.¶¶ 13, 14.)

In addition to these instances of retaliation, Plaintiff alleges that he also suffered racial harassment from McNeil and the other officers. Plaintiff is white and Jewish, while McNeil and Ewell are black. Plaintiff alleges that McNeil openly referred to white officers as "Mark Furmans" and made jokes about Jewish people. Plaintiff states that another officer, Major Beard, told Plaintiff that when Louis Farrakhan was President, Jews would be "taken care of." (Compl.¶¶ 66, 67.) Plaintiff also alleges that McNeil intervened in the hiring and training process in order to hire black females who did not meet the DPD's standards for hiring and training. Plaintiff states that McNeil removed a captain from his position as a trainer because he refused to pass black females who failed the fitness and academic training requirements. (Compl.¶ 27.) Plaintiff, however, does not allege that McNeil or the other Defendants hired or promoted any of these employees instead of Plaintiff on the basis of some discriminatory criteria.

Plaintiff states that because of the treatment he received while he was a Traffic Supervisor, he requested and was granted a transfer to walking patrol in March 1995. Less than three weeks after Plaintiff's transfer, he was injured while responding to a breaking and entering call. Plaintiff states that although the injury left him able to perform only light-duty work, he was not offered the light-duty work that is commonly given to officers after recovering from an injury. Instead, Plaintiff states that he was placed on permanent midnight shift in the DPD records department. (Compl.¶ 18.) Plaintiff states that the DPD's failure to place him on a proper light-duty work assignment violated the policy of the City of Durham and the DPD which requires (1) that the DPD comply with medical orders that policemen be placed on light-duty work assignments with restricted activity, and (2) that the DPD provide desirable work accommodations through appropriate work assignments in such instances. Plaintiff alleges that because the DPD and the City of Durham violated these policies in his case, Plaintiff was forced to retire on disability.

In addition to the alleged discrimination that took place while Plaintiff was employed with the DPD, Plaintiff alleges that Defendant Ewell has continued to harass against Plaintiff since he left the DPD. Plaintiff, who has attempted to maintain a private investigative business, alleges that Ewell told one of Plaintiff's clients that Plaintiff was incompetent and that the client could have done better than to hire Plaintiff. Plaintiff states that as a consequence he lost his contract with that client. (Compl.¶ 28.)

Plaintiff contends that Defendant Powell is liable for McNeil's actions on a theory of negligent hiring. Plaintiff alleges that Powell hired McNeil even though Powell was aware of many instances of improper behavior by McNeil, including breaking and entering, assault, referring to white officers as Mark Furmans, and hiding a gun involved in a police shooting incident. Plaintiff further alleges that although Defendant Powell, as City Manager, was aware of the discrimination and retaliation suffered by Plaintiff and was in a position to stop it, Defendant Powell ratified McNeil's actions by promoting McNeil to Chief of Police. (Compl.¶¶ 40-52.)

As a result of the alleged discrimination suffered by Plaintiff, Plaintiff has brought federal and state claims against Defendants. The federal claims are comprised of a claim for violation of 42 U.S.C. § 1983 and a claim for violation of 42 U.S.C. § 1981. The state claims are comprised of claims for wrongful termination, negligent hire, negligent retention, negligent supervision, negligent infliction of emotional distress, intentional infliction of emotional distress, tortious interference with contract, and tortious interference with future relations and/or prospective advantage.

Plaintiff filed his complaint against Defendants in the Superior Court of Durham County, North Carolina, on November 1, 1999.² Defendants City of Durham, Ewell, and Powell, pursuant to 28 U.S.C. § 1446(a), removed this action to this Court on December 30, 1999. Defendants have moved to dismiss all of Plaintiff's claims pursuant to Fed.R.Civ.P. 12(b)(6) on the ground that Plaintiff has failed to state a claim upon which relief can be granted. In the alternative, Defendants have submitted an affidavit and have moved for summary judgment as to each of Plaintiff's claims.

III. DISCUSSION

A. Standard for Motion to Dismiss

With respect to a motion to dismiss pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted, dismissals are allowed only in very limited circumstances. Rogers v. Jefferson-Pilot Life Ins. Co., 883 F.2d 324, 325 (4th Cir. 1989). Generally, a court should not dismiss a complaint for failure to state a claim "unless it appears certain that the plaintiff can prove no set of facts which would support its claim and would entitle it to relief." Mylan Laboratories, Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.1993), cert. denied, 510 U.S. 1197, 114 S.Ct. 1307, 127 L.Ed.2d 658 (1994). In making this determination, a court must view the complaint in the light most favorable to the...