Dyer v. City of Gastonia

164 F. Supp. 3d 777, 2016 WL 815304, 2016 U.S. Dist. LEXIS 24407
CourtDistrict Court, W.D. North Carolina
DecidedFebruary 29, 2016
DocketDOCKET NO. 3:15-cv-00033-MOC-DCK
StatusPublished

This text of 164 F. Supp. 3d 777 (Dyer v. City of Gastonia) is published on Counsel Stack Legal Research, covering District Court, W.D. North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dyer v. City of Gastonia, 164 F. Supp. 3d 777, 2016 WL 815304, 2016 U.S. Dist. LEXIS 24407 (W.D.N.C. 2016).

Opinion

ORDER

Max O. Cogburn Jr., United States District Judge

THIS MATTER is before the court on Defendant’s Motion for Summary Judg[779]*779ment (#13), which has been fully briefed and is ripe for review. The court heard oral arguments on the motion on February 10, 2016.

I. Introduction

The facts of this case are as follows. The Schiele Museum of Natural History is an agency of the City of Gastonia and falls under the Parks, Recreation and Cultural Services Department. (Deposition of Dr. Ann Tippitt (#14-7; 17-4) (hereinafter “Tippitt Depo.”) pp. 26-28). Dr. Ann Tip-pitt is the Director of the Museum. Chuck Dellinger is the Director of the Parks, Recreation, and Cultural Services Department. (Tippitt Depo. p. 10; Deposition of Chuck Dellinger (##14-2;17-9) (hereinafter “Dellinger Depo.”) pp. 7-9). Tony Pas-our has been employed in various management positions at the Museum since 1993. He has been the Head of Interpretation at the Museum since 2010. (Tippitt Depo. pp. 13-15; Deposition of Tony Pasour (##14-6; 17-5) (hereinafter “Pasour Depo.”) pp. 6-8). In the spring of 2012, Pasour interviewed Plaintiff and recommended that she be hired to fill the part-time Guest Services Specialist position. (Pasour Depo. p. 47). Her primary duties were to interact with the museum’s school field trip clients and schedule these clients for the various' educational events at the museum. (Pasour Depo. pp. 48-49).

Defendant states that by mid-summer of 2012, Plaintiff began to demonstrate performance issues by virtue of poor customer service skills and instances of unprofessional interactions with customers and staff. (Pasour Depo. pp. 49-71; (#14-9)). Pasour’s deposition testimony indicates that he generally had concerns with her attitude and interpersonal skills more than concerns about her ability to handle tasks, see (Pasour Depo. 100-06), but that there was an incident with scheduling a field trip which he considered direct insubordination on the part of Plaintiff. (Id. at 103). The record indicates that four separate incidents occurred between August and November 2012 which Pasour found to be inappropriate or unacceptable work behavior. See (#14-9 at p. 3-4) (written statement of incidents). In the fall of 2012, Pasour talked with Tippitt and recommended that Plaintiff be terminated, and Tippitt agreed. (Pasour Depo. pp. 109-110; Tippitt Depo. pp. 85, 106-107; Dellinger Depo. pp. 57-58). However, Dellinger suggested a three day suspension instead. (Pasour Depo. pp. 110-111). On November 29, 2012, Plaintiff was issued a Notice of Disciplinary Action for failing to obey proper direction made and given by a superior and for incompetent or inefficient performance of duties. Plaintiff was suspended for three workdays without pay as a result of her disciplinary action. (Deposition of Susan Dyer (##14-4; 17-6) (hereinafter “Dyer Depo. or “Plaintiff Depo.”) pp. 47-49; Tippitt Depo. pp. 90-91; (#14-9) (exhibits including Notice of Disciplinary Action).

Plaintiff states that she met with Tippitt after receiving this, suspension and produced positive evaluations by museum guests to refute Pasour’s claims that she provided poor customer service. (Tippitt Depo. at p. 110). Plaintiff states that she informed Tippitt of multiple mistakes by Pasour, similar to those Plaintiff was accused of, but was unwilling to file a formal grievance or contest her suspension because she feared retaliation from Pasour. (#1-1 at ¶17; Tippitt Depo. at 49-50). Plaintiff also states that she told Tippitt at that time that Pasour screamed and yelled at women in the office, but not the men. (Dyer Depo. pp. 90-94). In terms of her experience working with Pasour, Plaintiff states that Pasour was often out of the office and unavailable during standard working hours, did not respond to many of [780]*780her telephone calls or emails at all or in a timely manner, bullied, belittled, and yelled at her, and instead of answering her questions about documents she handed him, threw them in the trash in an angry manner. (Dyer Depo. at pp. 38, 39, 41, 42, 43, 44, 48, 52, 54; (#1-1 at ¶15); Affidavit of Susan Dyer (#17-2) (hereinafter “Dyer Aff.”) at ¶ 4.

Defendant states that in February 2013, Tippitt and Pasour learned from Dellinger that there had been a mistake in budgeting the hours for several of the part-time museum employees, including those of Plaintiff. (Pasour Depo. pp. 170-174; Tippitt Depo. pp. 50-53). When Plaintiff was hired, Tippitt and Pasour mistakenly believed the position was budgeted for 1,400 hours, but it was actually budgeted for 990 hours. Tippitt and Pasour realized that Plaintiff and others were close to having exhausted those budgeted hours for the fiscal year, which ran July 1, 2012 — June 30, 2013. (Pasour Depo. pp. 170-174; Tippitt Depo. pp. 50-53).

On or about March 8, 2013, Pasour notified Plaintiff that the budgeted hours available for her position were approaching the maximum allowance of 990 hours for the fiscal year, and then told her that Defendant had reapportioned the remaining hours so that she could work through April. (Pasour Depo. pp. 170-174; Tippitt Depo. pp. 50-53). Pasour also discussed with Plaintiff that since the summer months did not require field trip scheduling, it would be best not to bring her back on July 1, 2013 (the start of the new fiscal year), but instead for her to begin in late August when the school field trip scheduling commenced. (Pasour Depo. p. 174). Plaintiff states that around that time — the day after she received notice that she would be furloughed — she made a verbal complaint about Pasour to Tippitt, telling Tippitt that she “wanted to make sure that [her] job was safe and secure because [she] felt like [Pasour] was trying to get [her] out the door because he hated women.” (Dyer Depo. p. 96).

Plaintiff last worked on Thursday, April 5, 2013. Tippitt testified at her deposition that at the time Plaintiff stopped working, she “still needed improvement because all of the functions that really should have been with that job were not being performed within it,” that Plaintiff had not met expectations, and that she would not have recommended that Plaintiff be hired back. (Tippitt Depo. pp. 56-57). Along the same lines, Defendant notes that in February 2013, Pasour produced a memo to Tip-pitt highlighting what he perceived as “continued poor performance” by Plaintiff. (Pasour Depo. p. 139). However, Dellinger testified at his deposition that he thought Plaintiffs performance had improved to the level of requiring no further attention by the early months of 2013. (Dellinger Depo. p. 65).

On April 13, 2013, Plaintiff sent an email to City Manager Ed Munn complaining of the way Pasour had treated her at work, including making specific complaints about the way he treated other women in the office. (Tippitt Depo. p. 125; Munn Depo at pp. 19-22; (#17-1 at p. 42)). This is the first time Plaintiff made a written complaint about Pasour’s treatment towards her and, in general, other women. Subsequent email correspondence between Plaintiff and Tippitt clarified that Plaintiff considered her complaint a formal grievance.

On April 23, 2013, Chuck Dellinger began an investigation of Plaintiffs grievance and conducted an on-site visit to the Schiele Museum. (Tippitt Depo. pp. 125, 139; Dellinger Depo. pp. 56, 75). As part of the investigation, he met with most, of the museum staff, including all employees who worked under Pasour. (Dellinger Depo. p. 82). Mr. Dellinger also had a phone confer[781]*781ence with one staff member later that evening. (Dellinger Depo. pp. 75-84, 128-29).

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Bluebook (online)
164 F. Supp. 3d 777, 2016 WL 815304, 2016 U.S. Dist. LEXIS 24407, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dyer-v-city-of-gastonia-ncwd-2016.