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Federal judge’s order trims black officers’ claims against city of Greensboro

by Jordan Green

David Wray resigned under pressure as chief of the Greensboro Police Department in January 2006. (file photo)

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Two separate orders signed by a federal judge last week chop out large swaths of the civil claims filed in a lawsuit by 39 black Greensboro police officers, drawing a bead on the remaining areas of contention, and clearing the way for discovery and ultimately a trial if the parties do not reach a settlement.

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At 194 pages altogether, the two orders drafted by US District Court Thomas D. Schroeder winnow the officers’ claims against the city of Greensboro, former Chief David Wray, former Deputy Chief Randall Brady, Officer Scott Sanders and Councilwoman Trudy Wade. The orders apply a threshold of plausibility and make an authoritative, independent assessment of allegations that have resisted resolution despite valiant attempts by elected officials, pastors, bloggers and journalists through the course of a controversy that has now polarized the city for half a decade.

Among those who pronounced themselves pleased with the orders was John Bloss, a lawyer for the plaintiffs.

“Judge Schroeder obviously gave the matter careful and thoughtful consideration,” Bloss said in a prepared statement. “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 toward trial.”

The longest and most detailed order allows the officers to proceed with hostile work environment claims against individual defendants under a provision of the Civil Rights Act of 1866, allows an equal protection claim to go forward for all plaintiffs and green-lights a breach of contract claim against the city based on Wade’s role in disclosing the terms of a proposed settlement to the Rhinoceros Times, which led to council members voting to rescind the offer.

It also allows disparate treatment claims by plaintiffs Steve Evans and Lawrence Alexander Jr. to go forward under the Reconstruction-era civil rights law. The order allows plaintiff Antuan Hinson to seek legal redress for alleged violation of his Fourth Amendment rights to freedom from unreasonable search and seizure, and to pursue a claim for invasion of privacy. Finally, the order allows the officers’ claim of tortious interference to proceed against Wade.

The hostile work environment claims center on the allegation that officers’ photographs and other information were placed in lineup books by Sanders, who worked as a detective in the special intelligence section under Wray. The former chief resigned under pressure in January 2006, while Sanders was returned to active duty but reassigned from the disbanded special intelligence unit following his acquittal on felony criminal charges and after the completion of an administrative investigation.

As to the lineups, Schroeder wrote, “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 judge added, “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.”

Based on Schroeder’s order, the city could end up being held liable for Wade’s role in the release of the names of the officers and the amount of a proposed settlement. Schroeder noted that that the city has argued that “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.”

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Schroeder’s order indicates he does not necessarily see it that way. “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,” he writes. “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 judge also allows the black officers to pursue a claim against Wade as an individual for tortious interference, finding that the “plaintiffs have sufficiently alleged that the settlement agreement would have ensued but for Wade’s alleged interference and that Wade’s actions caused plaintiffs to suffer damages, namely the loss of the opportunity to receive $750,000 from the city in settlement of their claims.”

Schroeder faulted the plaintiffs for what he characterized as a “shotgun” complaint, adding that it “presents an array of generalized grievances and vague allegations,” including “discriminatory investigations, targeting of plaintiffs, disparate disciplinary practices, hostile work environment, failures to promote” and violations of state personnel law.

Instead, he reviewed claims by individual plaintiffs to narrow the scope of what may be argued at trial.

Schroeder found that Evans has a legitimate disparate treatment claim by meeting the requirement of plausibly alleging an adverse employment action “because he was allegedly denied a significant work opportunity for which he would have received compensation.” The judge added, “Moreover, Evans has alleged that he was qualified” for the position.

“Evans alleges that although he was the only black GPD officer certified by the North Carolina Justice Academy as a marksmanship instructor, Wray appointed white officers, not Evans, as instructors at local community colleges and/or the Greensboro Police Academy,” Schroeder writes.

Likewise, the judge found that Alexander “has plausibly stated a claim for disparate discipline against the GPD defendants.”

Alexander’s discrimination claim centers on a bureau-level reprimand that he received for giving criminal background and license tag information to an unauthorized civilian, Nicole Pettiford. In contrast, Schroeder’s order indicates that “Susan Farkas, a white, non-sworn employee, gave license tag information to an unauthorized civilian as well, but she was investigated by SID and she received only a first-level reprimand, two grades lower than Alexander’s reprimand.”

While allowing Alexander’s claim to go forward, Schroeder explores potential weaknesses.

“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 back ground

and license tag information, Farkas disclosed only license tag information (although she had done so before), and unlike Alexander, Farkas was a non-sworn employee.”

Schroeder’s decision to allow Antuan Hinson to pursue a Fourth Amendment claim relates to Sanders’ “secret placement of a keystroke-monitoring device on Hinson’s computer,” which was allegedly authorized by Wray and Brady.

The judge’s order reveals a degree of skepticism as to whether Hinson will succeed in proving his case in court.

“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,” Schroeder writes. “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.”

Schroeder also grants that Hinson has an invasion of privacy claim against the city and other individual defendants based on Sanders’ secret monitoring of his e-mails.

Schroeder’s orders reduce the city’s liability in one sense by throwing out claims that alleged discrimination under the leadership of former Chief David Wray constituted a “municipal policy or custom.” The judge said the 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 Sanders, Wray and Brady, and that the plaintiffs failed to prove that the manager and council “deliberately failed to correct these wrongs.”

At the time the scandal broke, Wray reported to City Manager Mitchell Johnson, who was subsequently fired by city council. A new chief replaced Wray’s successor last September.

Without mentioning Johnson by name, Schroeder notes that the plaintiffs themselves allege that in January 2006, the city manager “publicly condemned the GPD defendants’ actions and accepted Wray’s resignation as chief of police. At the time, he also announced that after reviewing one of the lineup 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.”

Among the plaintiffs who are denied the opportunity to pursue individual disparate treatment claims under Schroeder’s orders are Brian James, a one-time executive officer to Wray who has been promoted to captain since the former chief’s resignation; and Ernest Cuthbertson and Norman Rankin, both of whom served in the disbanded special intelligence unit.

James’ claim revolved around Sanders’ role in an investigation into an allegation that James had associated with a known offender through his interactions with Pettiford, a onetime hotel clerk and car saleswoman who agreed to try to obtain sensitive information from the police for a drug dealerturned-federal informant.

The lawsuit contends that James’ alleged offense did not warrant criminal investigation, that the investigation was administrative and it should not have been undertaken by Sanders. Nothing came of the probe, and James contends that later his superiors failed to honor a request to complete an investigation that he believes would have cleared his name. In contrast, a legal report completed by the city in the fall of 2005 states that a white officer named Domitrivits allegedly associated with a known offender, and “she was given counseling and was instructed not to commit this violation again, but no investigation took place.”

Schroeder said James cannot make a disparate treatment claim because he has not provided any evidence that the investigation resulted in adverse employment action: No disciplinary action was taken against him and no reprimand was handed down; no concrete investigative findings were made against him for which he might need to clear his name.

Schroeder also dismisses disparate treatment claims by Rankin and Cuthbertson based on the fact that they do not establish that any adverse employment action took place as a result of a number of questionable activities, including what the judge describes as “discussion of personnel information,” “fake investigations” and “undercutting of plaintiffs’ investigations.”

The judge’s description of those activities, based on the lawsuit filed by the 39 officers, paints a picture of a department under Wray’s command in which black officers were subject to unnecessary embarrassment, and inefficient ruses and interference were undertaken to provide Sanders with room to maneuver and to sideline black officers in the special intelligence unit.

On the topic of personnel information being aired, Schroeder writes, “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 alleged ‘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.”

Another scenario judged by Schroeder to not meet the “adverse employment action” test is an allegation by Cuthbertson “that he was repeatedly assigned to investigate fabricated criminal activity so that in his absence the other SID officers could investigate black officers.”

Still another, as described by the judge:

“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.’”

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