The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:21-CV-371-BO
SONYA CALLOWAY-DURHAM, )
Plaintiff, )
ORDER
N.C. DEPARTMENT OF JUSTICE, al.
Defendants. )
This cause comes before the Court on defendants’ motion for summary judgment pursuant
to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff has responded, defendants have
replied, and the motion is ripe for ruling. For the reasons that follow, the motion for sunnmary
judgment is denied.
BACKGROUND
Plaintiff commenced this action by filing a complaint on September 15, 2021. Remaining
for resolution are plaintiff's claims against the North Carolina Department of Justice for race,
color, and sex discrimination in violation of Title VII of the Civil Rights Act and against Leslie
Cooley Dismukes and Alana Danielle Marquis Elder in their individual capacities for race, color
and sex discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment.
See [DE 50].
The following facts are undisputed. The North Carolina Department of Justice (NCDOJ)
provides, among other things, legal representation to state agencies as well as state officers and
employees for actions taken as part of their official duties. NCDYOJ is organized into a Civil Bureau
and a Criminal Bureau, each of which include sections which are led by a Section Head. In 2020,
the Criminal Division, which is a part of the Criminal Bureau, was comprised of three sections:
the Public Safety Section, the Special Prosecutions and Law Enforcement Section, and the
Appellate and Post-Conviction Section. Defendant Leslie Cooley Dismukes (Dismukes) has been
the Criminal Bureau Chief since December 2017. Defendant Alana Elder (Elder) has been the
Senior Deputy Attorney General of the Criminal Division above the Public Safety Section since
March 2018. Elder oversees the Section Heads and reports to Dismukes. Both Dismukes and Elder
are white women.
Plaintiff is a Black woman and was admitted to the North Carolina State Bar in 1995. She
first practiced as a solo practitioner and in 2001 was hired as an attorney in NCDOJ’s Labor
Section. In 2005, plaintiff was promoted from an Attorney II to an Attorney III position. In 2011,
Elder, who was then Section Head of the Capital Litigation/Federal Habeas Section, selected
plaintiff for promotion to an Attorney IV position for which plaintiff had applied. In 2018, plaintiff
was transferred to the Public Safety Section. still serving as an Attorney IV.
When plaintiff began in the Public Safety Section, the Section Head was a white male. In
2019, Dismukes transferred Tammera Hill, a Black woman, to the Public Safety Section Head
position. In May 2020, Hill informed Dismukes and Elder that she had accepted another position
and would be leaving NCDOJ at the end of June. Dismukes and Elder. who had been pleased with
Hill's performance as Section Head, asked Hill whom in the Public Safety Section she would
recommend as her replacement. Hill recommended James Trachtman, a white male. Hill's
recommendation was not motivated by race, color, or sex. Trachtman had been hired by NCDOJ
in 2019 as an Attorney III.
The Public Safety Section Head position was posted and plaintiff and Trachtman, along
with others, applied. Four applicants were ultimately selected to be interviewed. The interview
panel consisted of Dismukes, Elder, and Tina Wong, a Human Resources employee. Plaintiff,
Trachtman, and two others were interviewed. With the exception of plaintiff, each of the applicants
chosen to be interviewed were white males, two of whom were internal candidates and one of
whom was external. Trachtman was selected by the interview panel for the position and was
ultimately hired as the Public Safety Section Head.
Plaintiff grieved her non-selection through internal procedures and was unsuccessful. She
subsequently filed a charge of discrimination with the Equal Opportunity Employment
Commission. The instant Jawsuit followed.
DISCUSSION
A motion for summary judgment may not be granted unless there are no genuine issues of
material fact for trial and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(a). The moving party bears the initial burden of demonstrating the absence of a genuine issue
of material fact. Celotex Corp. v. Catrett, 477 U.S. 317. 323 (1986). If that burden has been met,
the non-moving party must then come forward and establish the specific material facts in dispute
to survive summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
588 (1986). In determining whether a genuine issue of material fact exists for trial, a trial court
views the evidence and the inferences in the light most favorable to the nonmoving party. Scott v.
Harris, 550 U.S. 372, 378 (2007). “A dispute is genuine if a reasonable jury coulcl return a verdict
for the nonmoving party. A fact is material if it might affect the outcome of the suit under the
governing law.” Libertarian Party of Va. y. Judd, 718 F.3d 308, 313 (4th Cir. 2013) (internal
quotation marks and citations omitted). Speculative or conclusory allegations will not suffice.
Thompson vy. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th ‘Cir. 2002).
The Court considers both plaintiff's Title VI] and equal protection claim under thie
framework established for Title VII cases. See, e.g.. Beardsley v. Webb, 30 F.3d 524, 529 (4th Cir.
1994); Disher v. Weaver, 308 F. Supp. 2d 614. 626 (M.D.N.C. 2004). As is demonstrated in her
opposition to summary judgment, plaintiff proceeds under the McDonnell Douglas burden-shifting
framework established for deciding Title VII cases. See Hill vy. Lockheed Martin Logistics Mgmt.,
354 F.3d 277, 284-85 (4th Cir. 2004). A plaintiff who proceeds under the McDonnell Douglas
burden-shifting framework must demonstrate first a prima facie case of discrimination, after which
the burden shifts to the employer to show that the reason for the adverse employment action was
legitimate and non-discriminatory. See, e.g., Lettieri v. Equant, Inc., 478 F.3d 640, 646 (4th Cir.
2007). The plaintiff must then prove that the employer's proffered legitimate reason was pretext
for discriminatory treatment. /d.
A prima facie case of discrimination based upon the failure to promote is established when
a plaintiff can show “(1) she is a member of a protected class; (2) her employer had an open
position for which she applied or sought to apply; (3) she was qualified for the position; and (4)
she was rejected for the position under circumstances giving rise to an inference of unlawful
discrimination.” Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 959-60 (4th Cir. 1996).
Plaintiff has satisfied her low burden to demonstrate a prima facie case of race, color,
and/or sex discrimination. She is a member of protected classes, she applied for an open position
for which she was qualified, and she was not selected under circumstances which give rise to an
inference of unlawful discrimination. Defendants agree that plaintiff has established a prima facie
case of discrimination. [DE 101! p. 23 pf 38]. Defendants have further proffered legitimate, non-
discriminatory reasons for selecting Trachtman and not plaintiff, specifically his lengthy prior
litigation experience, his prior supervisory experience, his experience with client development and
management, and his appellate experience in both state and federal courts.
“A plaintiff alleging a failure to promote can prove pretext by showing that he was better
qualified, or by amassing circumstantial evidence that otherwise undermines the credibility of the
employer’s stated reasons.” Heiko v. Colombo Sav. Bank, F.S.B., 434 F.3d 249, 259 (4th Cir.
2006). Viewing the facts in the light most favorable to plaintiff, which at this stage the Court must
do, plaintiff has come forward with sufficient evidence to create a genuine issue of fact as to
pretext. For example, defendants place great weight on Hill’s recommendation of Trachtman for
the position. In her declaration filed by plaintiff, however, Hill states that she recommended
Trachtman and not plaintiff “because it never occurred to [her] that [plaintiff] would want the job.”
[DE 136] Hill Decl. { 15. Additionally, none of the applicants interviewed had significant
supervisory experience, see, ¢.g., [DE 133-9 p. 2 of 3], but one of the justifications for selecting
Trachtman indicates that he had “significant supervisory experience.” [DE 115 p. | of 2].
Defendants Dismukes and Elder have also raised the defense of qualified immunity to
plaintiff's § 1983 equal protection claim. Qualified immunity shields government officials from
liability for statutory or constitutional violations so long as they can reasonably believe that their
conduct does not violate clearly established law. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
A court employs a two-step procedure for determining whether qualified immunity applies that
“asks first whether a constitutional violation occurred and second whether the right violated was
clearly established.” Melgar v. Greene, 593 F.3d 348, 353 (4th Cir. 2010). A clearly established
right requires existing precedent which places “the statutory or constitutional question beyond
debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (noting a case on point is not required).
Moreover, the right must not be defined at a highi level of generaliity arid mustinstead focus onthe
particular conduct at issue. Mullenix v. Luna, 577 U.S. 7, 12 (2015) (citing al-Kidd, 563 U.S. at
742).
It was clearly established at the time of plaintiff's non-selection that failing to promote an
otherwise qualified applicant on the basis of her sex, color, or race would violate the Equal
Protection Clause. As the Court has decided that issues of fact preclude summary judgment on
plaintiff's Title VII claim, specifically as to whether race, color, or sex was the real reason plaintiff
was not selected for promotion, it will deny the motion for summary judgment based on qualified
immunity. See, e.g., Disher, 308 F. Supp. 2d at 628.
In sum, the Court has considered the arguments and the evidence submitted and concludes
that plaintiff's proffered evidence is sufficient, at this stage and viewing all facts and inferences in
the light most favorable to her, to create a genuine issue of material fact as to whether defendants’
proffered legitimate reasons for selecting Trachtman and not plaintiff were pretextual.
Accordingly, and mindful that it should act with caution in granting summary judgment, the Court
will permit the case to proceed to trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
CONCLUSION
Accordingly, for the foregoing reasons, defendants’ motion for summary judgment [DE
97] is DENIED.
SO ORDERED, this ol day of August 2024.
TT 2rsnee A ogke
TERRENCE W. BOYLE
UNITED STATES CISTRICT JUDGE