Forbes v. City of DurhamÂ
255 N.C. App. 255
| N.C. Ct. App. | 2017Background
- Forbes was a long‑time Durham PD officer promoted up to Assistant Chief by Chief Lopez; a Deputy Chief vacancy arose in early 2013.
- Lopez announced he would run a new promotion review process (rather than rely on an earlier panel list) and promoted Anthony Marsh (also Black) to Deputy Chief in March 2013. Forbes was passed over.
- Forbes had previously voiced concerns to Lopez about perceived racial discrimination and filed internal HR complaints in February–March 2013 and an EEOC charge later in August 2013; he also reported an allegedly racist remark by Lopez to City Manager Bonfield in July 2013.
- Forbes sued the City, Lopez, and Bonfield asserting race‑discrimination and retaliation claims under Title VII, 42 U.S.C. §§ 1981 and 1983, and the North Carolina Constitution; defendants moved for summary judgment.
- The trial court granted summary judgment for defendants and dismissed all claims with prejudice; Forbes appealed only the retaliation rulings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Title VII retaliation (City) — whether Forbes raised genuine issue that Lopez’s promotion decision was retaliatory | Forbes contended his verbal complaints and early HR filings were protected activity and that the change to a new review process and the failure to promote were motivated by retaliation | Defendants argued Forbes cannot show but‑for causation: many protected acts postdated the promotion decision; Lopez had legitimate, nondiscriminatory reasons (panel rated Marsh slightly higher) | Court held no genuine issue of material fact; summary judgment affirmed — Forbes failed to show causal link or that defendants’ articulated reason was pretextual |
| 42 U.S.C. § 1981 and § 1983 retaliation (City) — municipal liability for retaliation | Forbes argued § 1981 covers retaliation and the City is liable for unlawful employment actions | Defendants argued municipal liability requires an official policy or custom causally connected to the violation; Lopez’s intent cannot be imputed to the City absent such a policy | Court held Forbes did not identify any City policy or custom causing retaliation; summary judgment for City affirmed |
| § 1981/§ 1983 retaliation (Bonfield) — individual and official capacity liability | Forbes relied on Bonfield’s supervisory authority and his receipt of the July 2013 complaint about Lopez | Defendants argued Bonfield had no role in the promotion decision and the July 2013 report postdated the promotion | Court held Forbes produced no evidence tying Bonfield to the alleged retaliatory decision; claims against Bonfield dismissed |
| § 1981/§ 1983 retaliation (Lopez) — individual liability for retaliation | Forbes argued Lopez’s conduct was retaliatory and pretextual | Defendants argued Lopez had legitimate nondiscriminatory reasons (panel evaluations, discretion to restart process) and Forbes offered no evidence to show pretext | Court held Forbes failed to show causation or pretext; summary judgment for Lopez affirmed |
Key Cases Cited
- Smith v. Harris, 181 N.C. App. 585 (summary judgment standard on appeal)
- Peace v. Employment Sec. Comm’n, 128 N.C. App. 1 (prima facie and burden‑shifting framework for Title VII retaliation)
- University of Texas Southwestern Medical Center v. Nassar, 570 U.S. 338 (Title VII retaliation requires but‑for causation)
- Brooks v. Stroh Brewery Co., 95 N.C. App. 226 (causal connection for retaliation cannot be mere speculation)
- May v. City of Durham, 136 N.C. App. 578 (municipal liability requires official policy or custom as moving force)
- CBOCS West, Inc. v. Humphries, 553 U.S. 442 (§ 1981 remedies include retaliation claims)