Lightner v. City of Wilmington, North Carolina

498 F.Supp.2d 802

James J. LIGHTNER, Plaintiff, v. The CITY OF WILMINGTON, NORTH CAROLINA; Tandy Carter, Acting Chief of Police for the Wilmington Police Department; Bruce Hickman, Interim Chief of Police for the Wilmington Police Department; and Sterling Cheatham, City Manager for the City of Wilmington, Defendants.

No. 7:05-CV-101-FL.

United States District Court, E.D. North Carolina, Southern Division.

March 30, 2007.

Stephen E. Culbreth, Stephen E. Culbreth, Attorney at Law, Wilmington, NC, for Plaintiff.

B. Danforth Morton, Hedrick & Morton, LLP, William E. Wolak, Office of City Attorney, Wilmington, NC, for Defendants.

ORDER

FLANAGAN, Chief Judge.

This matter comes before the court on the memorandum and recommendation (hereinafter M & R) of United States Magistrate Judge James E. Gates (DE # 27), entered February 14, 2007, recommending the court deny defendants' motion for summary judgment (DE # 17), filed May 18, 2006. Defendants filed objections to the M & R, which plaintiff moved to strike as untimely. The court entered order previously wherein it denied plaintiff's motion to strike. Plaintiff has not separately responded to the objections. Therefore, the issues raised are ripe for decision. For the reasons that follow, the court grants defendants' motion for summary judgment.

STATEMENT OF THE CASE

Plaintiff, a retired police officer formerly employed by the Wilmington, North Carolina Police Department (hereinafter the "Department"), filed a complaint in New Hanover County Superior Court, on May 13, 2005, alleging the Department, several of its employees, and the city manager violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (Title VII), and 42 U.S.C. §§ 1981 and 1983, by practicing discrimination in disciplining plaintiff. Defendants filed notice of removal on June 2, 2005, premising the court's jurisdiction on the federal questions raised in the complaint. After proceeding through discovery, defendants moved for summary judgment on all claims.

STATEMENT OF THE FACTS

During the period of time relevant to this case, plaintiff was a fifty-three (53) year old white male, and a twenty-five (25) year veteran of the Department. Although nominally possessing the rank of lieutenant, plaintiff most recently served as Acting Captain and Acting Division Commander of the Professional Standards Division (hereinafter "Professional Standards") of the Department. Throughout his tenure with the Department, plaintiff had an exemplary service record, and prior to the events in question had not been the subject of any disciplinary action.

Professional Standards, commonly known as "Internal Affairs," is the division of the Department which investigates allegations of ethics and rules violations against police officers. Plaintiff headed Professional Standards for approximately three months when, on February 4, 2004, he submitted a notice of resignation, with a retirement date of March 1, 2004. Around the same time, February 3 through 5, three officers , complained that plaintiff engaged in "ticket fixing," the practice of intervening on behalf of friends or family with ticketing officers, in an attempt to secure a dismissal of the traffic ticket or reduced punishment. The usual method of ticket fixing was to request the ticketing officer secure dismissal of the ticket by the district attorney. This was a common practice in the Department, but only once before led to discipline. However, in a meeting on February 5, 2004, defendant Tandy Carter, Acting Police Chief (hereinafter "Carter"), and defendant Bruce Hickman, Acting Deputy Police Chief (hereinafter "Hickman"), informed plaintiff that he was being placed on administrative leave, with pay, pending investigation of the allegations.¹

Because of plaintiff's position with Professional Standards, that division could not investigate the allegations,. and they were referred to other city employees, specifically Mary Ann Hinshaw, Deputy City Manager (hereinafter "Hinshaw"), and Denise Matroni, Senior Personnel Analyst with the city's Human Resources Department (hereinafter "Matroni"). Hinshaw and Matroni did not investigate one of the three complaints, owing to its vagueness, but interviewed the two other complaining officers and one of the beneficiaries of the ticket fixing. Officer T.R. Spencer (hereinafter "Spencer") told Hinshaw and Matroni that plaintiff had recently requested that Spencer come to his office at Professional Standards, and during the meeting that followed, plaintiff requested favorable treatment of an acquaintance. Officers were required to report to plaintiffs office if so instructed, but plaintiff denied, and Spencer confirmed, that there was no overt pressure applied during the meeting. Spencer did however tell Hinshaw and Matroni that "[h]e did not feel like an immediate thing would happen to him like lose his job, but his failure to comply with the request would come back some time in the future." (DE # 18, Hinshaw/Matroni memo. of 2-16-04, at 1.)² The other investigated complaint arose from conduct before plaintiff commanded Professional Standards.

On February 16, 2004, Hinshaw and Matroni completed their investigation and discussed their findings in a memorandum to William Wolak, Assistant City Attorney (hereinafter "Wolak") and defendant Sterling Cheatham, City Manager (hereinafter "Cheatham"), with a copy to Al McKenzie, Human Resources Director (hereinafter "McKenzie"). Hinshaw and Matroni concluded ticket fixing was a common practice, but plaintiffs conduct was problematic because (1) his request, as a superior officer, might be misconstrued as an order; (2) officers assigned to Professional Standards "should be beyond reproach for professional and ethical behavior;" and (3) as division commander of Professional Standards, plaintiff had an extra duty to maintain superior ethics. (Id. at 2.) Hinshaw and Matroni recommended plaintiff be suspended without pay for his final two weeks of employment before retirement. In a subsequent memorandum to defendant Hickman on February 16, 2004, McKenzie, writing on behalf of defendant Cheatham, concurred in the recommendation of a two-week suspension without pay.

Defendant Hickman notified plaintiff of the results of the investigation, by memorandum dated February 17, 2004. In addition to requiring plaintiff's presence at a "pre-disciplinary conference" the following day, the memorandum set out four sections from the Department's Manual of Rules which plaintiff "compromised:"

6.13 — Unnecessary Involvement — Supervisors shall not become involved in cases or activities of members who did not fall under their area of supervision, unless justifiably necessary to accomplish a legitimate police purpose.

10.07 — Intervention — Members shall not knowingly interfere with cases being handled by other employees of the department or any other governmental agency.

8.01 — Compliance to Rules and Regulations — Supervisors of the Wilmington Police Department, in addition to observing and complying with all listed rules and departmental policies shall be held to especially accountable for compliance with the rules listed in this unit, "Supervisory Accountability". Since their tasks involve supervision of others, they shall be held to a higher standard regarding the understanding and following of rules contained in this chapter.

8.17 — Setting an Example — Supervisors shall maintain a professional demeanor and set an example of professionalism and full compliance with all departmental rules, regulations, policies, orders, and directives.

(DE # 18, Hickman memo. of 2-17-04, at 1.) After the pre-disciplinary hearing, plaintiff was suspended without pay for one week, from February 23 to February 29, 2004. Thus, he was effectively suspended for the remainder of his employment. The punishment was confirmed by memorandum from defendant Hickman to plaintiff, dated February 19, 2004, which noted that plaintiff would remain on administrative leave until the start of the suspension. Plaintiff promptly appealed the suspension to defendant Cheatham, who upheld the discipline after a brief meeting with plaintiff and counsel.

Plaintiffs complaint alleges the suspension resulted from race, gender, and age discrimination, as evidenced by the relatively lenient punishment incurred by a Lieutenant Green (hereinafter "Green"), a black female and the only other officer ever disciplined for ticket fixing. Green faced allegations that in late 2001 and early 2002, she on several occasions attended court in New Hanover County, ordered the clerk to send certain cases to a particular courtroom, and instructed the prosecuting attorney to dismiss the tickets. She never contacted the citing officers, and once even ordered the dismissal of a ticket, for her sister, on which the citing officer noted the offender's poor behavior at the scene as a reason the ticket should not be dismissed. Green's conduct came to light after she acted rudely towards staff members in the clerk of court's office, in demanding access to certain files.

Despite a lengthy disciplinary history and the seriousness of her conduct, Green received a one-day paid suspension, called a "Decision Making Day," which, at that time, was the most severe punishment, short of termination, permitted by the city's progressive disciplinary system. At time of plaintiffs punishment, "Decision Making Day" no longer was a disciplinary option.

On February 9, 2004, only days after the Department placed plaintiff on administrative leave, the city amended its disciplinary policy to eliminate "Decision Making Day." In its place, the city `instituted suspension, for an indeterminate length, with or without pay, at the discretion of the punishing supervisor. Plaintiff insists he was never made aware of any change in Department policy prior to his suspension, although he was on administrative leave when the change went into effect. Plaintiff attributes...