RODNEY ALTON LORBACHER, Plaintiff v. HOUSING AUTHORITY OF THE CITY OF RALEIGH, FLOYD T. CARTER, former Executive Director, PAUL H. MESSENGER, current Executive Director and HORACE C. BRANTLEY III, former Deputy Executive Director, Defendants
Case Details
- Citation
- 127 N.C. App. 663
- Judge(s)
- Judges EAGLES and MARTIN, Mark D., concur.
- Procedural Posture — the stage the case had reached
- appeal
- State
- North Carolina
- Circuit
- 4th Circuit
Related Laws
No specific laws identified for this ruling.
Claim Types
Outcome
Plaintiff's § 1983 First Amendment claim and punitive damages claims were dismissed on summary judgment. However, the court reversed summary judgment on the state wrongful discharge claim, finding a genuine issue of material fact regarding whether plaintiff was discharged in retaliation for his testimony about dangerous conditions.
Excerpt
RODNEY ALTON LORBACHER, Plaintiff v. HOUSING AUTHORITY OF THE CITY OF RALEIGH, FLOYD T. CARTER, former Executive Director, PAUL H. MESSENGER, current Executive Director and HORACE C. BRANTLEY III, former Deputy Executive Director, Defendants No. COA97-129 (Filed 18 November 1997) 1. Constitutional Law § 86 (NCI4th)— 42 U.S.C. § 1983-action against individuals — presumed in official capacity It was presumed that plaintiff was suing the named defendants under 42 U.S.C. § 1983 in their official capacity as officers of the Housing Authority where the complaint did not identify whether defendants were being sued in their individual or official capacities but the caption of the complaint and the allegations made therein refer to them by both their names and job titles. A suit against a defendant in his or her official capacity is simply another way of pleading an action against the municipality itself. 2. Constitutional Law § 86 (NCI4th)— employment termination — 42 U.S.C. § 1983 — violation of free speech- no policy or practice Summary judgment was properly granted for defendant Housing Authority on a claim under 42 U.S.C. § 1983 for deprivation of free speech arising from plaintiff’s firing as Director of Development where plaintiff neither alleged nor brought forth any evidence that the Housing Authority has a policy or practice of discharging employees for the exercise of First Amendment rights. Although plaintiff alleges that the individual defendants were delegated final policy-making authority, the Housing Authority Board established personnel policies and adopted the employee handbook in question, which states that all personnel decisions regarding demotions and discharges are vested in the Executive Director and those designated to act on the Executive Director’s behalf. The Executive Director is a final decision-maker in matters of promotions and discharges, but is not the final policy-maker with regard to substantive personnel matters. 3. Trial § 43 (NCI4th)— summary judgment — motion to reconsider — new evidence The trial court did not abuse its discretion by denying plaintiff’s motion to reconsider a summary judgment for defendant Housing Authority on a 42 U.S.C. § 1983 claim in light of new evidence where the additional evidence failed to establish that the Housing Authority itself was responsible for the violation of plaintiff’s constitutional rights. 4. Labor and Employment § 68 (NCI4th)— wrongful discharge — municipal agency — 42 U.S.C. § 1983 claim distinguished Defendant Housing Authority could be sued for wrongful discharge where plaintiff brought a state claim for wrongful discharge and a claim under 42 U.S.C. § 1983 against the Housing Authority and individual officials arising from his dismissal from the Housing Authority. A state claim for wrongful discharge may be based on the agency relationship between an entity and its officers and employees and plaintiff alleged that the individual defendants were acting in the scope and course of their employment when they discharged him. The court properly dismissed the claim against the individuals as they were not plaintiff’s employers for purposes of a wrongful discharge claim and, while the Housing Authority contends that the state wrongful discharge claim against it should be dismissed for the same reasons as the § 1983 claim, the requirements for municipal liability under § 1983 are specifically driven by the text and legislative history of the federal statute. 5. Labor and Employment § 77 (NCI4th)— agency negligence disclosed — wrongful discharge claim — summary judgment Summary judgment should not have been granted for defendant Housing Authority on a state wrongful discharge claim where plaintiff alleged that he was dismissed for giving truthful testimony and media statements about the Housing Authority’s knowledge of dangerous conditions and inadequate maintenance programs which led to two deaths and defendant contended that plaintiff was discharged for failure to obtain a valid driver’s license and for accepting rides from contractors in violation of policy. A valid claim for wrongful discharge exists when an at-will employee is discharged for an unlawful reason or in contravention of public policy and if plaintiff’s discharge was in retaliation for his testimony, his claim falls well within the public policy exception. Plaintiff’s evidence created a genuine issue of material fact as to the motive for his discharge; although defendant produced refuting evidence, it is for the finder of fact to determine the motive. However, the trial court correctly granted summary judgment on the issue of punitive damages since punitive damages may not be recovered from a municipal corporation absent statutory authorization. 6. Constitutional Law § 105 (NCI4th)— employment dismissal — federal due process — employee handbook — no entitlement to continued employment The trial court properly dismissed under N.C.G.S. § 1A-1, Rule 12(b)(6) plaintiff’s Fourteenth Amendment Due Process claim arising from his dismissal from the Housing Authority where plaintiff did not allege a liberty interest, failed to allege that he is covered by a statute or ordinance creating an entitlement to continued employment, and employee handbooks are not considered part of the employment contract unless expressly included. 7. Constitutional Law § 105 (NCI4th)— employment termination — North Carolina Constitution — insufficient property interest The trial court properly dismissed plaintiffs claim that his discharge from the Housing Authority violated the Law of the Land clause of the North Carolina Constitution where he lacked the requisite property interest in continued employment to trigger the protections afforded by the State Constitution. 8. Constitutional Law § 98 (NCI4th)— freedom of speech— state constitution — wrongful discharge claim — adequate protection Plaintiffs discharge from the Housing Authority, allegedly for giving deposition testimony and media statements regarding improper Housing Authority practices, did not warrant a direct claim under the North Carolina Constitution for violation of freedom of speech because plaintiffs rights are adequately protected by a wrongful discharge claim. 9. Intentional Mental Distress § 2 (NCI4th)— employment discharge — allegations—insufficient The trial court did not err by dismissing plaintiffs claim for intentional infliction of emotional distress arising from his discharge from the Housing Authority, allegedly for disclosing the Housing Authority’s negligent operations, where defendant’s conduct, even assuming the truth of the allegations, did not rise to the required level of extreme and outrageous conduct and plaintiff did not allege that defendants’ conduct was intentional. 10.Negligence § 75 (NCI4th)— employment discharge— negligent infliction of mental distress — allegations— insufficient The trial court properly dismissed plaintiff’s negligent infliction of emotional distress claim arising from his discharge from the Housing Authority, allegedly for disclosing the Housing Authority’s negligent operations. The conclusion that defendant’s conduct was not extreme and outrageous with respect to plaintiff’s intentional infliction of emotional distress claim also precludes any claim for negligent infliction of emotional distress. Appeal by plaintiff from judgment entered 12 November 1996, by Judge Henry V. Barnette in Wake County Superior Court. Heard in the Court of Appeals 6 October 1997. The purpose of the Housing Authority is to provide and maintain low income residential housing in the Raleigh area. Plaintiff worked for the Housing Authority for a number of years and eventually became “Director of Development.” Part of plaintiffs responsibilities revolved around obtaining federal grant monies for improvements, supervising various employees, monitoring the work of consultants, and visiting construction sites to monitor for construction compliance. On 29 June 1992, plaintiff lost his driver’s license as a result of a driving while impaired conviction. Because performance of his duties required a valid driver’s license, Brantley terminated plaintiff’s employment on 21 July 1992. Plaintiff appealed his termination and agreed to find a car and driver for any necessary travel and was reinstated effective 8 August 1992. As a result of negligent maintenance of a heating system, two residents of Walnut Terrace Apartments died from carbon monoxide poisoning on 10 October 1992. On 3 November 1992, a wrongful death action was filed against the Housing Authority. Plaintiff gave deposition testimony in the case on 22 October 1993 and testified regarding the Housing Authority’s knowledge of the dangerous conditions at the apartment complex and failure to take any remedial action. Plaintiff was discharged by Paul Messenger on 28 October 1993. In October 1994, plaintiff filed suit against the Housing Authority of the City of Raleigh, Floyd T. Carter, former Executive Director, Horace C. Brantley III, former Deputy Executive Director, and Paul H. Messenger, then current Executive Director. He alleged that his discharge resulted from his comments to the media about improper Housing Authority practices and his deposition testimony to the same effect. Defendants claim plaintiff’s discharge was not related to his deposition testimony but rather was the result of plaintiff’s failure to obtain acceptable transportation arrangements that were necessary for the proper performance of his duties. Paul Messenger was hired as the new Executive Director of the Housing Authority, replacing Floyd Carter, on 20 September 1993. Shortly after his arrival, Messenger learned through a routine insurance check that plaintiff did not have a valid license. Messenger also learned that plaintiff was accepting rides to construction sites from the contractors he was supervising, in contravention of Housing Authority policy. Messenger terminated plaintiffs employment on 28 October 1993 on the grounds that plaintiff could not fulfill the responsibilities of his job without a license and that accepting rides from the contractors he was to supervise created an unacceptable conflict of interest. Plaintiff brought the following claims against defendants: (1) a 42 U.S.C. § 1983 claim for violation of his First Amendment rights, (2) violation of his Fourteenth Amendment Due Process rights, (3) a conspiracy claim under 42 U.S.C. § 1985, (4) violations of his state constitutional rights under the Law of the Land and Free Speech Clauses, and (5) state law claims against defendants for breach of their fiduciary duties, intentional infliction of emotional distress and negligent infliction of emotional distress. Plaintiff additionally requested punitive damages. Defendants moved to dismiss all claims except the federal constitutional free speech claim and the wrongful discharge claim against the Housing Authority. On 1 May 1996, Judge Barnette partially granted defendants’ motion. All claims against defendant Brantley were dismissed for the lack of any allegation of misconduct on his part. All the remaining claims covered were dismissed as well, except for plaintiffs claims against defendants Carter and Messenger for punitive damages. Subsequently, defendants’ motion for summary judgment on plaintiff’s free speech, wrongful discharge and punitive damages claims was granted on 2 October 1996. On the same day, plaintiff tendered additional evidence and filed a motion to reconsider or for relief from summary judgment. The trial court denied this motion and plaintiff appealed. William E. Moore, Jr. and Marvin Schiller for plaintiff appellant. Cranfill, Sumner & Hartzog, L.L.P., by Raymond M. Davis, for defendant appellee. ARNOLD, Chief Judge. Plaintiff appeals from the trial court’s order granting defendants’ motion for summary judgment on plaintiff’s 42 U.S.C. § 1983 claim for violation of his First Amendment rights, his state wrongful discharge claim, and claims for punitive damages against defendants Carter and Messenger. He also assigns error to the trial court’s denial of his motion to reconsider or for relief from summary judgment. Finally, plaintiff appeals from the partial grant of defendants’ motion to dismiss on his Fourteenth Amendment Due Process claim, state constitutional Law of the Land and Freedom of Speech claims, and intentional and negligent infliction of emotional distress claims. Summary judgment is appropriate when then there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. N.C. Gen. Stat. § 1A-1, Rule 56(c) (1990); Gregory v. Perdue, Inc., 47 N.C. App. 655, 656, 267 S.E.2d 584, 586 (1980). It is not the court’s function to decide questions of fact when ruling on a motion for summary judgment; rather, the moving party must establish that there is an absence of a triable issue of fact. Moore v. Bryson, 11 N.C. App. 260, 262, 181 S.E.2d 113, 114 (1971) (citations omitted). All evidence must be considered in the light most favorable to the non-moving party. Burrow v. Westinghouse Electric Corp., 88 N.C. App. 347, 350, 363 S.E.2d 215, 217, disc. review denied, 322 N.C. 111, 367 S.E.2d 910 (1988) (citations omitted). Plaintiff alleges that defendants deprived him of his First Amendment right to free speech in .violation of 42 U.S.C. § 1983. The federal statute reads, in relevant part: Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 42 U.S.C. § 1983 (1994). The Housing Authority is a municipal corporation. Jackson v. Housing Authority of High Point, 316 N.C. 259, 341 S.E.2d 523 (1986). Although the language of § 1983 speaks in terms of “person,” the United States Supreme Court holds that municipalities axe “persons” for purposes of the statute. Monell v. Department of Social Services, 436 U.S. 658, 56 L. Ed. 2d 611 (1978). Although plaintiff also brought claims against Housing Authority officers under the statute, we need only consider the liability of the Housing Authority for the § 1983 claim. Municipal officers may be sued under § 1983 in their official or individual capacity. Hafer v. Melo, 502 U.S. 21, 116 L. Ed. 2d 301 (1991). A suit against a defendant in his/her official capacity is simply another way of pleading an action against the municipality itself. Monell, 436 U.S. 658, 690 n.55, 56 L. Ed. 2d 611, 635 n.55. Officials who are sued in their individual capacity are personally liable for damages, although a defense of qualified immunity may be available to them. Harlow v. Fitzgerald, 457 U.S. 800, 73 L. Ed. 2d 396 (1982). In the present case, the complaint does not identify whether defendants Carter and Messenger are being sued in their individual or official capacities; however, the caption of the complaint, and the allegations made therein, refer to them by both their names and job titles. We presume that plaintiff is suing these individuals in their official capacity as officers of the Housing Authority. See Kolar v. County of Sangamon of State of Ill., 756 F.2d 564, 568 (7th Cir. 1985). Therefore, we need only consider the liability of the Housing Authority with respect to this claim. Although a municipality may be sued under the statute, it may not be held liable solely on the basis of respondeat superior, rather, liability exists only if the entity itself is responsible for the violation. Pembaur v. City of Cincinnati, 475 U.S. 469, 478, 89 L. Ed. 2d 452, 462 (1986). The Housing Authority only can be held liable for the actions of its employees if it officially ordered or sanctioned the conduct, the employees responsible for plaintiffs demotion and discharge had final policy-making authority, or the action was taken pursuant to a municipal policy, practice or custom. Id. at 483 n.12, 89 L. Ed. 2d at 465 n.12. Plaintiff neither alleges nor brings forth any evidence of the Housing Authority having a policy or practice of discharging employees for the exercise of First Amendment rights. Instead, plaintiff alleges that defendants Carter and Messenger were delegated final policy-making authority. It is on this theory of municipal liability alone which plaintiff rests his case. In order that the action properly may be considered a municipal policy, the employee must possess authority to establish “final policy with respect to the subject matter in question.” Id. at 483, 89 L. Ed. 2d at 465. The determination of whether a specific official has final policy-making authority is governed by state or local law. City of St. Louis v. Praprotnik, 485 U.S. 112, 125, 99 L. Ed. 2d 107, 119 (1988). The Housing Authority handbook states that all personnel decisions regarding demotions and discharges are vested in the Executive Director and those designated to act on his/her behalf. The fact that an official has some discretion in the exercise of his/her functions, in and of itself, does not give rise to municipal liability. Pembaur, 475 U.S. at 481-82, 89 L. Ed. 2d at 464. Although the executive director is a final decision-maker in matters of promotions and discharges, he is not the final policy-maker with regard to substantive personnel matters. The Housing Authority Board established personnel policies and adopted the employee handbook in question. Federal courts draw a line between the power to implement policy and the power to make policy. An official’s ability to discharge an employee does not necessarily equate to the ability to create substantive policy. See Greensboro Professional Firefighters Ass’n, Local 3157 v. City of Greensboro, 64 F.3d 962, 966 (4th Cir. 1995) (“The discretion to hire and fire does not necessarily include responsibility for establishing related policy.”). Plaintiff has failed to come forward with any evidence to support a viable theory of liability. Indeed, plaintiff failed to even address this element of a § 1983 claim in his brief. Accordingly, we conclude that summary judgment for defendant Housing Authority was properly granted. At this point, we also consider plaintiffs argument that in light of the introduction of new evidence, the trial court erred in denying his motion to reconsider or for relief from judgment. The standard of review on appeal from the trial court’s denial of such a motion is whether the trial court abused its discretion. Muse v. Charter Hospital of Winston-Salem, Inc., 117 N.C. App. 468, 481, 452 S.E.2d 589, affirmed per curiam, 342 N.C. 403, 464 S.E.2d 44 (1995). We conclude that the trial court did not abuse its discretion in this matter. The additional evidence failed to establish that the Housing Authority itself was responsible for the violation of plaintiff’s constitutional rights. Plaintiff also brought a state law cause of action against defendants for wrongful discharge. The trial court properly dismissed the claim against the individual defendants as they were not plaintiff’s employers for the purposes of a wrongful discharge claim. See Sides v. Duke University, 74 N.C. App. 331, 343, 328 S.E.2d 818, 827, disc. review denied, 314 N.C. 331, 333 S.E.2d 490 (1985). With regard to the Housing Authority, it argues that this claim against it fails for the same reasons that plaintiff’s First Amendment claim fails. We disagree. Plaintiff brought suit against defendant Housing Authority for violation of his First Amendment rights pursuant to 42 U.S.C. § 1983. The requirements for municipal liability under § 1983 are specifically driven by the text and legislative history of this federal statute. Plaintiff’s wrongful discharge claim is not a federal, bu
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