The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
No. 4:19-CV-86-D
MICHAEL ROY SHEPPARD, )
Plaintiff,
v. ORDER
SHERIFF ERNIE COLEMAN,
Defendant.
On February 10, 2017, Sheriff Ernest “Ernie” Coleman (“Sheriff Coleman” or “defendant”)
terminated Michael Sheppard’s (“Sheppard” or “plaintiff’) employment. On June 25, 2019,
Sheppard, proceeding pro se and in forma pauperis, filed a complaint against the Beaufort County
Sheriff's Office (“BCSO”) alleging a retaliation claim under Title VII of the Civil Rights of 1964,
42 U.S.C. § 2000e, et seq. [D.E. 1, 5, 6]. Sheppard contends that Sheriff Coleman terminated his
employment due to his February 8, 2017 complaint to Sheriff Coleman opposing race discrimination
involving a biracial deputy named Dominic Franks (“Franks”).
On August 2, 2020, Sheppard filed a second amended complaint [D.E. 41].' In count one,
Sheppard asserts a retaliation claim under Title VH against Sheriff Coleman in his official capacity.
See id. ff 19-20. In count two, Sheppard asserts a retaliation claim under 42 U.S.C. §§ 1983 and
1981 against Sheriff Coleman in his official capacity and individual capacity. See id. 21-22. In
. each count, Sheppard contends that Sheriff Coleman terminated his employment on February 10,
‘ Sheriff Coleman is the sole remaining defendant. The clerk shall amend the caption.
2017, in retaliation for Sheppard’s February 8, 2017 complaint to Sheriff Coleman opposing race
discrimination involving Franks. See id. [J] 19-22.
On August 19, 2020, Sheppard moved for summary judgment [D.E. 43] and filed a statement
of material facts in support [D.E. 43-1]. On October 29, 2020, Sheriff Coleman cross-moved for
summary judgment [D.E. 52] and filed a memorandum [D.E. 56] and a statement of material facts
in support [D.E. 53]. On November 19, 2020, Sheppard responded in opposition [D.E. 57, 57-1] and
filed an additional statement of material facts [D.E. 57-1] and an appendix in support [D.E. 58]. On
December 3, 2020, Sheriff Coleman replied to Sheppard’s response to Sheriff Coleman’s statement
of material facts and to Sheppard’s additional statement of material facts [D.E. 59], and filed an
appendix in support [D.E. 60]. On the same day, Sheriff Coleman replied to Sheppard’s response
to Sheriff Coleman’s motion for summary judgment [D.E. 61].
The court has reviewed the evidence, governing law, and cross-motions for summary
judgment under the governing standard. See, e.g., Desmond v. PNGI Charles Town Gaming, L.L.C.,
630 F.3d 351, 354 (4th Cir. 2011). Genuine issues of material fact exist on each of Sheppard’s
claims. Thus, the court denies each party’s motion for summary judgment.
The court also denies Sheriff Coleman’s motion for summary judgment on his qualified
immunity defense concerning count two.” Sheriff Coleman contends that he is entitled to qualified
immunity on count two because it allegedly was not clearly established on February 10, 2017, that
Sheppard’s February 8, 2017 statements to Sheriff Coleman constituted protected opposition activity.
2 Qualified immunity does not apply to count one. See, e.g., Cutts v. Peed, 17 F. App’x 132,
136-37 (4th Cir. 2001) (per curiam) (unpublished) (“[T]here is no qualified immunity from liability
under Title VII.”); Genas v. N.Y. Dep’t of Corr. Servs., 75 F.3d 825, 829 n.3 (2d Cir. 1996); Busby
v. City of Orlando, 931 F.2d 764, 772 (11th Cir. 1991); Harvey v. Blake, 913 F.2d 226, 228 (Sth Cir.
1990).
However, viewing the evidence in the light most favorable to Sheppard, genuine issues of material
fact exist as to whether Sheriff Coleman is entitled to qualified immunity on count two. Cf. Butler
v. Pennington, 803 F. App’x 694, 696 (4th Cir. 2020) (per curiam) (unpublished). A rational jury
could find Sheppard’s February 8, 2017 statements to Sheriff Coleman to be protected opposition
activity under 42 U.S.C. §§ 1983 and 1981. See, e.g., CBOCS W.., Inc. v. Humphries, 553 U.S. 442,
452-57 (2008); Okoli v. City of Baltimore, 648 F.3d 216, 223-25 (4th Cir. 2011). If the jury were
to so find and to find the other elements of Sheppard’s retaliation claim in count two, Sheriff
Coleman would not be entitled to qualified immunity. See, e.g.. CBOCS W.., Inc., 553 U.S. at
452-57; Groh v. Ramirez, 540 U.S. 551, 563-65 (2004); Hope v. Pelzer, 536 U.S. 730, 739-46
(2002); Jett v. Dall. Indep. Sch. Dist., 491 U.S. 701, 731-38 (1989). The right to be free from
retaliation under sections 1983 and 1981 for opposing race discrimination was clearly established
on February 10, 2017. See, e.g., CBOCS W., Inc., 553 U.S. at 452-57; Jett, 491 U.S. at 731-38;
accord Booker v. S.C. Dep’t of Corr., 855 F.3d 533, 539-46 (4th Cir. 2017).
In sum, the court DENIES plaintiff's motion for summary judgment [D.E. 43] and DENIES
defendant’s motion for summary judgment [D.E. 52]. The parties shall engage in a court-hosted
settlement conference with United States Magistrate Judge James E. Gates. If the case does not
settle at the conference, the parties shall submit proposed trial dates.
SO ORDERED. This 2.4 day of March 2021.
Ceo
United States District Judge