UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-2188
PAULA MAY TOWNSEND,
Plaintiff - Appellant,
v.
MARK WILLIAM SHOOK, individually and in his official
capacity as Sheriff of Watauga County; WATAUGA COUNTY;
WESTERN SURETY COMPANY,
Defendants - Appellees,
and
JOHN DOE SURETY,
Defendant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Dennis L. Howell,
Magistrate Judge. (5:06-cv-00070-DLH)
Submitted: March 19, 2009 Decided: April 24, 2009
Before WILLIAMS, Chief Judge, TRAXLER, Circuit Judge, and
HAMILTON, Senior Circuit Judge.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Angela Newell Gray, Greensboro, North Carolina, for Appellant.
James R. Morgan, Jr., Mary N. Craven, WOMBLE, CARLYLE, SANDRIDGE
& RICE, PLLC, Winston-Salem, North Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In this sexual harassment/wrongful discharge case alleging
various federal and North Carolina state law claims, Paula
Townsend (Plaintiff) appeals from the magistrate judge’s grant
of summary judgment in favor of: (1) Mark Shook, individually
and in his official capacity as Sheriff of Watauga County, North
Carolina; (2) Watauga County; and (3) Western Surety Company.
We affirm in part, vacate in part, and remand for further
proceedings consistent with this opinion. 1
I.
In 1986, Plaintiff was hired as an administrative clerk for
the Watauga County Sheriff’s Office by her close family friend,
then Sheriff James Lyons (Sheriff Lyons). 2 Under Sheriff Lyons,
Plaintiff served as a criminal investigator and later as a
detective sergeant in the Watauga County Sheriff’s Office.
1
The parties consented to disposition of this case by a
United States Magistrate Judge, pursuant to 28 U.S.C. § 636(c).
2
Because Plaintiff’s claims on appeal are analyzed under
the summary judgment standard, we present the facts in the light
most favorable to Plaintiff, as the non-moving party. See Hill
v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 283 (4th
Cir. 2004).
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In 1998, Sheriff Lyons appointed Plaintiff to the position
of Chief Deputy Sheriff. In December 2002, through an election,
Mark Shook (Sheriff Shook) became Sheriff of Watauga County.
Sheriff Shook immediately reappointed Plaintiff to the position
of Chief Deputy Sheriff, although he was under no legal
obligation to do so. Plaintiff served in that position until
Sheriff Shook terminated her two and a half years later on July
12, 2005.
As Chief Deputy Sheriff under Sheriff Shook, Plaintiff was
second in command at the Watauga County Sheriff’s Office,
wielded the authority to issue commands and directives in the
name of Sheriff Shook, and served as the acting Sheriff in
Sheriff Shook’s absence. Moreover, as Chief Deputy Sheriff,
Plaintiff was the policy administrator for the Watauga County
Sheriff’s Office, heavily involved in drafting policy and making
sure that such policies were carried out. In her position,
Plaintiff was also responsible for handling all internal
investigations; drafting and administering the office budget;
and chairing the office hiring committee. Sheriff Shook, who
had the sole power to appoint Plaintiff to the position of Chief
Deputy Sheriff, also had the sole power to demote or terminate
her.
In support of her allegations of sexual harassment,
Plaintiff presented evidence that, on numerous occasions
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throughout her tenure as Chief Deputy Sheriff, Sheriff Shook
attempted to engage her romantically through physical and verbal
advances. On each occasion, Plaintiff rebuffed his advances.
For example, on New Years’ Eve 2002, while sitting alone in
a patrol car during a stakeout of a methamphetamine lab, Sheriff
Shook pulled Plaintiff towards him and started fondling one of
her breasts and kissing her. Plaintiff pulled away and told
Sheriff Shook that he “d[id]n’t need to be doing that.” (S.J.A.
37). Sheriff Shook responded that he had been crazy about
Plaintiff since high school and that he had “always had a thing
for [her].” Id.
Sheriff Shook engaged in similar behavior towards Plaintiff
while the two attended an out-of-town training conference in
April 2003. Plaintiff again rebuffed Sheriff Shook’s sexual
advances. Also in April 2003, Sheriff Shook gave Plaintiff a
note expressing his romantic feelings for her at a time when he
believed his life was in danger as a result of death threats.
Another incident of aggressive sexual advances by Sheriff Shook
towards Plaintiff happened in 2003 in Sheriff Shook’s office.
On other occasions, Sheriff Shook touched Plaintiff’s hair and
shoulders and attempted to hold her hand.
Sheriff Shook also occasionally told dirty jokes in
Plaintiff’s presence and, in January or February of 2004, told
Plaintiff of a sexual fantasy that he had involving her.
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Sheriff Shook also occasionally made derogatory comments about
Plaintiff or women in general in her presence.
In contending that Plaintiff was terminated for a
legitimate, nondiscriminatory reason, Sheriff Shook presented
evidence that over the course of Plaintiff’s service as Chief
Deputy Sheriff during his administration, Plaintiff was
increasingly absent from work and generally behaved in a manner
that caused her to lose the respect and trust of many members of
the Watauga County Sheriff’s Office. Plaintiff acknowledges
that she was warned of this situation by Sheriff Shook on
several occasions and that she was advised by him to take
measures to earn the trust and respect of the deputies.
According to Sheriff Shook, Plaintiff’s professional
failings culminated in a magazine article that featured her in
early July 2005, which angered many members of the Watauga
County Sheriff’s Office. According to Sheriff Shook, this was
the final straw which resulted in his asking Plaintiff to resign
her position as Chief Deputy Sheriff, and when she declined to
do so, he terminated her on July 12, 2005. In rebuttal,
Plaintiff contends that the reasons given by Sheriff Shook were
not legitimate, nondiscriminatory reasons, but were a mere
pretext for unlawful discrimination.
On June 13, 2006, Plaintiff filed the present action
against Sheriff Shook in both his official capacity as Sheriff
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of Watauga County and in his individual capacity, also naming as
defendants Watauga County and John Doe Surety. The complaint
alleged two federal claims and four state law claims. With
respect to her federal claims, Plaintiff alleged sexual
harassment and wrongful discharge because of her gender in
violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq., along with a concurrent § 1983 claim, 42
U.S.C. § 1983, against all defendants. Plaintiff alleged the
following three claims against all defendants under North
Carolina law: (1) wrongful discharge in violation of North
Carolina public policy, as stated in North Carolina General
Statute § 143-422.2, because she rebuffed Sheriff Shook’s sexual
advances; (2) common law negligent infliction of emotional
distress; and (3) common law intentional infliction of emotional
distress. In her fourth state law claim, Plaintiff alleged
common law negligent supervision and retention of Sheriff Shook
by Watauga County.
Sheriff Shook counterclaimed against Plaintiff for
defamation. Plaintiff then filed an Amended Complaint on
December 12, 2006, substituting Western Surety Company, the
surety on Sheriff Shook’s official bond obtained pursuant to
North Carolina General Statute § 162-8, for John Doe Surety as a
defendant.
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After the close of discovery, Sheriff Shook, Watauga
County, and Western Surety Company (collectively Defendants)
moved for summary judgment on all claims. Plaintiff moved for
summary judgment with respect to Sheriff Shook’s counterclaim
for defamation. The magistrate judge first determined that
Plaintiff fell within Title VII’s exclusion of protection for
“any person chosen . . . to be on [the] personal staff” of “any
person elected to public office in any State or political
subdivision of any State by the qualified voters thereof . . .
.” 42 U.S.C. § 2000e(f). On this basis, the magistrate judge
granted summary judgment in favor of Defendants with respect to
Plaintiff’s Title VII and § 1983 claims and dismissed, for lack
of subject matter jurisdiction, such claims without prejudice to
Plaintiff filing a claim with the Equal Employment Opportunity
Commission (EEOC) based upon the same allegations under the
Government Employee Rights Act of 1991 (GERA), 42 U.S.C.
§ 2000e-16a et seq. The magistrate judge also granted summary
judgment in favor of Defendants with respect to Plaintiff’s
North Carolina common law claims alleging negligent infliction
of emotional distress and wrongful discharge in violation of
North Carolina public policy, as stated in North Carolina
General Statute § 143-422.2, because she would not accede to the
sexual advances of Sheriff Shook, and dismissed such claims with
prejudice. Moreover, the magistrate judge granted summary
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judgment in favor of Watauga County with respect to Plaintiff’s
claim alleging negligent supervision and retention and dismissed
such claim with prejudice. Finally, the magistrate judge
dismissed Plaintiff’s claim alleging intentional infliction of
emotional distress and Sheriff Shook’s counterclaim for
defamation without prejudice to their respective abilities to
refile such claims in state court in accordance with 28 U.S.C.
§ 1367(c)(3).
Plaintiff timely noted the present appeal challenging the
adverse dispositions of her Title VII claim, § 1983 claim, North
Carolina public policy claim, and negligent infliction of
emotional distress claim. We address each claim in turn.
II.
We review the grant of summary judgment de novo, drawing
all reasonable inferences in favor of Plaintiff, the non-moving
party. Hill, 354 F.3d at 283. Summary judgment is appropriate
“if the pleadings, the discovery and disclosure materials on
file, and any affidavits show that there is no genuine issue as
to any material fact and that the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(c).
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III.
Plaintiff first contends the magistrate judge erred in
determining that she fell under Title VII’s exclusion of
protection for the personal staff of an elected official, and
therefore, reversibly erred by granting summary judgment in
favor of Defendants with respect to her Title VII claim and her
§ 1983 claim and by dismissing such claims for lack of subject
matter jurisdiction. While we agree with Plaintiff that the
magistrate judge erroneously held that the court lacked subject
matter jurisdiction over Plaintiff’s Title VII and § 1983
claims, we hold that such error was harmless and affirm the
judgment on these claims.
Title VII defines the term “employee,” in relevant part,
as:
an individual employed by an employer, except that the
term “employee” shall not include any person elected
to public office in any State or political subdivision
of any State by the qualified voters thereof, or any
person chosen by such officer to be on such officer’s
personal staff . . . .
42 U.S.C. § 2000e(f) (emphasis added). “The reach of Title
VII’s personal staff exclusion is a question of federal, not
state, law.” Cromer v. Brown, 88 F.3d 1315, 1322 (4th Cir.
1996). In determining whether Plaintiff falls within Title
VII’s personal staff exclusion, “[a] fact-specific examination
of [Plaintiff’s] role is what is required,” and “[i]n general,
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the examination should focus on whether the employee worked in
an intimate and sensitive position of trust, close to the
elected official.” Id. at 1323. See also id. (setting forth
non-rigid list of factors for consideration in fact-specific
examination of plaintiff’s role).
Here, a fact-specific examination of Plaintiff’s role as
Chief Deputy Sheriff, focusing on whether she worked in an
intimate and sensitive position of trust, close to Sheriff
Shook, results in our conclusion that Plaintiff falls under
Title VII’s exclusion of protection for the personal staff of an
elected official. As Chief Deputy Sheriff under Sheriff Shook,
Plaintiff was second in command at the Watauga County Sheriff’s
Office, wielded the authority to issue commands and directives
in the name of Sheriff Shook, and served as the Acting Sheriff
in Sheriff Shook’s absence. Moreover, as Chief Deputy Sheriff,
Plaintiff was the policy administrator for the Watauga County
Sheriff’s Office, requiring her to be heavily involved in
drafting policy and in making sure that such policies were
carried out. Plaintiff also was responsible for handling all
internal investigations; drafting and administering the office
budget; and chairing the office hiring committee. Sheriff
Shook, who had the sole power to appoint Plaintiff to the
position of Chief Deputy Sheriff, also had the sole power to
demote or discharge her. Under the totality of the
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circumstances just outlined, Plaintiff’s position as Chief
Deputy Sheriff was quintessentially an “intimate and sensitive
position of trust, close to [Sheriff Shook].” Id. As such,
Plaintiff is excluded from coverage under Title VII and her
Title VII claim fails as a matter of law.
We note that the crux of Plaintiff’s argument below and on
appeal is that after several months in her position as Chief
Deputy Sheriff, she was Chief Deputy Sheriff on paper only and
that Sheriff Shook relied on her more as a friend with whom he
would confide personal feelings, rather than professionally,
based on their respective positions. We agree with the
magistrate judge’s reasoning in rejecting this argument: “such
an argument, if accepted, would eliminate the exclusion to any
member of any elected official’s personal staff inasmuch as a
loss of trust and intimacy would be the forerunner of most
terminations.” (J.A. 220).
Turning to the subject matter jurisdiction issue, we hold
that application of Title VII’s personal staff exclusion does
not present a lack of subject matter jurisdiction issue. See
Arbaugh v. Y & H Corp., 546 U.S. 500, 516 (2006) (holding that
Title VII’s provision limiting its application to businesses
with fifteen or more employees was not jurisdictional, on the
basis that “when Congress does not rank a statutory limitation
on coverage as jurisdictional, courts should treat the
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restriction as nonjurisdictional in character”). Rather, at the
summary judgment stage, it presents the issue of whether a Title
VII plaintiff can prevail as a matter of law. Cromer, 88 F.3d
at 1324. Here, Plaintiff’s § 1983 claim also fails as a matter
of law, because Plaintiff based such claim solely upon her
ability to prevail upon her Title VII claim. Accordingly, we
affirm the magistrate judge’s entry of summary judgment in favor
of Defendants with respect to Plaintiff’s Title VII and § 1983
claims, and his dismissal of such claims without prejudice to
Plaintiff filing a claim under the GERA with the EEOC, based
upon the same allegations.
IV.
Plaintiff next contends the magistrate judge committed
reversible error by granting summary judgment in favor of
Defendants with respect to her North Carolina state law claim
alleging that she was wrongfully discharged in violation of
North Carolina public policy, as stated in North Carolina
General Statute § 143-422.2, because she would not accede to the
sexual advances of Sheriff Shook. We agree with Plaintiff’s
contention with respect to Sheriff Shook, sued in both his
individual and official capacities, and with respect to Western
Surety Company. However, we affirm the grant of summary
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judgment in favor of Watauga County, albeit on a different
ground than that upon which the magistrate judge relied.
According to North Carolina General Statute § 143-422.2,
known as North Carolina’s Equal Employment Practices Act
(NCEEPA):
It is the public policy of this State to protect and
safeguard the right and opportunity of all persons to
seek, obtain and hold employment without
discrimination or abridgement on account of race,
religion, color, national origin, age, sex or handicap
by employers which regularly employ 15 or more
employees.
Id. 3
In Smith v. First Union Nat’l Bank, 202 F.3d 234 (4th Cir.
2000), we held that there is no private right of action under
NCEEPA for sexual harassment. Id. at 247. Subsequently, in
McLean v. Patten Communities, Inc., 332 F.3d 714 (4th Cir.
2003), we held that a plaintiff does have a private cause of
action under North Carolina common law for violation of public
policy, specifically NCEEPA, when an employee is discharged
because she has refused to accede to the sexual advances of her
supervisor. Id. 722. The distinguishing feature between the
claim disallowed in Smith and the claim allowed in McLean is
that the claim allowed in McLean alleged a wrongful discharge
because of the plaintiff’s refusal of sexual favors to her
3
Defendants do not dispute that Watauga County Sheriff’s
Office has over fifteen employees.
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supervisor, while the claim disallowed in Smith did not allege
wrongful discharge, just sexual harassment.
Here, the magistrate judge relied upon Smith in granting
Defendants’ motion for summary judgment with respect to
Plaintiff’s North Carolina public policy claim, with no mention
of McLean. Based upon McLean, we: (1) vacate the judgment
below to the extent the magistrate judge granted summary
judgment in favor of Sheriff Shook, sued in both his individual
and official capacities, and Western Surety with respect to
Plaintiff’s claim alleging wrongful discharge in violation of
North Carolina public policy, as stated in North Carolina
General Statute § 143-422.2, because she rebuffed Sheriff
Shook’s sexual advances and to the extent the magistrate judge
dismissed such claim with prejudice; and (2) remand for further
proceedings consistent with this opinion. 4
We affirm the judgment below in favor of Watauga County
with respect to Plaintiff’s North Carolina public policy claim
on the basis that, under North Carolina law, Sheriff Shook, and
4
We express no opinion on Sheriff Shook’s claim to
governmental immunity in his official capacity, which argument
the magistrate judge did not reach below. We also express no
opinion on Western Surety Company’s argument that, although
Plaintiff named it as a defendant in her Amended Complaint, she
nevertheless failed to assert a cause of action against it
pursuant to North Carolina General Statute § 58-76-5. The
record on appeal does not disclose whether Western Surety
Company raised this argument below.
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not Watauga County, had exclusive responsibility for discharging
Plaintiff. Knight v. Vernon, 214 F.3d 544, 552-53 (4th Cir.
2000) (“Although the county board of commissioners may fix the
number of salaried employees within the sheriff’s office, the
sheriff ‘has the exclusive right’ under N.C. Gen. Stat. § 153A-
103 (1998) ‘to hire, discharge, and supervise the employees in
his office.’ North Carolina courts interpret this statute to
preclude county liability for personnel decisions made by
sheriffs.”).
V.
Lastly, Plaintiff argues that the magistrate judge
committed reversible error by entering summary judgment in favor
of Defendants with respect to her claim alleging negligent
infliction of emotional distress. Plaintiff’s argument is
without merit.
A claim for negligent infliction of emotional distress
under North Carolina common law has three elements: (1) the
defendant engaged in negligent conduct; (2) that such negligent
conduct would cause the plaintiff severe emotional distress was
foreseeable to the defendant; and (3) the negligent conduct, in
fact, caused severe emotional distress. Holleman v. Aiken, 668
S.E.2d 579, 591 (N.C. Ct. App. 2008). The magistrate judge
granted summary judgment in favor of Defendants with respect to
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Plaintiff’s negligent infliction of emotional distress claim on
the following basis:
In this case, the only evidence plaintiff has to
support this claim is the same evidence giving rise to
her claim for intentional infliction of emotional
distress. Plaintiff simply has alleged no negligent
acts on the part of any defendant and has provided no
evidence of any act of negligence.
(J.A. 227). After reviewing the record on appeal, we completely
agree with the magistrate judge’s analysis of this claim.
Accordingly, we affirm the magistrate judge’s grant of summary
judgment in favor of Defendants with respect to Plaintiff’s
negligent infliction of emotional distress claim and the
dismissal of such claim with prejudice.
VI.
In summary, we: (1) affirm entry of summary judgment in
favor of Defendants with respect to Plaintiff’s Title VII claim,
but note that the magistrate judge committed harmless error when
he held the court lacked subject matter jurisdiction over such
claim; (2) affirm entry of summary judgment in favor of
Defendants with respect to Plaintiff’s § 1983 claim, but note
that the magistrate judge committed harmless error when he held
the court lacked subject matter jurisdiction over such claim;
(3) affirm entry of summary judgment in favor of Watauga County
with respect to Plaintiff’s North Carolina public policy claim;
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(4) vacate the entry of summary judgment in favor of Sheriff
Shook and Western Surety Company with respect to Plaintiff’s
North Carolina public policy claim and remand for further
proceedings consistent with this opinion; and (5) affirm entry
of summary judgment in favor of Defendants with respect to
Plaintiff’s negligent infliction of emotional distress claim.
We note that the magistrate judge remains free on remand to
dismiss, without prejudice, Plaintiff’s North Carolina public
policy claim, pursuant to 28 U.S.C. § 1367(c)(3). We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
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Townsend v. Shook
Court: Court of Appeals for the Fourth Circuit
Date filed: 2009-04-24
Citations: 323 F. App'x 245
Copy CitationsCombined Opinion