BROWN JR. v. CITY OF DURHAM POLICE DEPARTMENT

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

MARK W. BROWN, JR., )

)

Plaintiff, )

)

v. ) 1:23-CV-1038

)

CITY OF DURHAM POLICE )

DEPARTMENT, PATRICE )

ANDREWS, POLICE CHIEF, in her )

individual and official capacity, )

GEORGE ZEIPEKKIS, CAPTAIN, in )

his individual and official capacity, and )

TYLER STEBBINS, OFFICER, in his )

individual and official capacity, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Catherine C. Eagles, Chief District Judge.

The plaintiff, Mark Brown, resigned from his job as a sergeant with the Durham

Police Department immediately after learning that he “might possibly” face criminal

charges for force he used during an arrest. He alleges that the defendants constructively

discharged him in violation of federal and state law. Because Sergeant Brown has not

alleged sufficient facts to support any of his claims, the defendants’ motion to dismiss

will be granted.

I. Procedural History

Sergeant Brown filed this suit in July 2023 in the Eastern District of North

Carolina. Doc. 1; Doc. 11 (corrected complaint). He asserts claims against the

defendants for discrimination and retaliation under Title VII and the Age Discrimination

in Employment Act (ADEA), for violations of the Equal Protection Clause and the First

Amendment under 42 U.S.C. § 1983, and for wrongful discharge in violation of public

policy. Doc. 11 at 3.

The defendants moved to transfer the case and separately moved to dismiss. Docs.

25, 27. The Eastern District transferred the case to this district in November 2023. Doc.

33. The motion to dismiss is fully briefed and ready for resolution.

II. Facts Alleged in the Complaint

Sergeant Brown began working for the Durham Police Department in June 2004

and was promoted to Sergeant in 2021. Doc. 11-1 at ¶¶ 4, 7. In March 2022, he assisted

with an arrest during which he put a “belligerent” suspect “in a head lock” in order to

move the suspect into a holding cell. Id. at ¶¶ 9, 18–37. After the incident, one of the

officers who assisted with the arrest, defendant Tyler Stebbins, falsely reported to another

sergeant that Sergeant Brown had “used a chokehold” on the suspect. Id. at ¶¶ 37, 47–48.

That same day, an unidentified person told Sergeant Brown that he was being

suspended and investigated for a use of force. Id. at ¶ 55. A captain in “internal

investigations” told Sergeant Brown that he was on “administrative leave with pay for a

use of force.” Id. at ¶ 56.

The next day, several officers told Sergeant Brown that the police chief, defendant

Patrice Andrews, “intended to terminate him.” Id. at ¶ 60. In response, Sergeant Brown

called an assistant chief and offered to retire “rather than resign or be fired.” Id. at ¶ 61.

After the assistant chief was “told to stay out of the matter,” id. at ¶ 63, Sergeant Brown

intended to retire and emailed a two-week notice of resignation to Chief Andrews,

defendant Captain George Zeipekkis, and a lieutenant. Id. at ¶¶ 64–65. Then a captain

who served as the “liaison” between the city’s human resources and police departments

told Sergeant Brown that “Chief Andrews was refusing to accept his two-week

resignation” and that the chief “might possibly have him charged with assault.” Id. at

¶¶ 67–68. Because of the threat of arrest and investigation, Sergeant Brown submitted a

letter of immediate resignation, id. at ¶¶ 71, 75; he did this only 25 minutes after he sent

his initial resignation email giving two weeks’ notice. Id. at ¶¶ 65, 71. As a result of this

“forced resignation,” he was “denied . . . the ability to retire.” Id. at ¶ 76.

Additional factual allegations will be discussed in connection with specific issues.

III. Defendant City of Durham Police Department

The caption of the complaint lists the “City of Durham Police Department” as a

defendant. Doc. 11 at 1. As the defendants point out, this is not a proper defendant. See,

e.g., Cates v. Sandoval, No. 20-CV-200, 2020 WL 5665537, at *7 (M.D.N.C. Sept. 23,

2020). Sergeant Brown says he meant to sue the City of Durham, Doc. 31 at 8, and in the

text of the complaint he does list “City of Durham” as “Defendant No. 1.” Doc. 11 at 2.

To the extent amendment is necessary, it would be futile because Sergeant Brown

has failed to state a claim against the City of Durham. See discussion infra. In this order,

the Court will refer to this defendant as the City of Durham, or the city, for simplicity.

IV. Motion to Dismiss Standard

“To survive a motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)). Courts view the allegations in the complaint as true, drawing all inferences in

the plaintiff's favor. See Twombly, 550 U.S. at 555–56; Langford v. Joyner, 62 F.4th 122,

124 (4th Cir. 2023). But courts are not required to “accept as true ‘legal conclusions

drawn from the facts’ or any other ‘unwarranted inferences, unreasonable conclusions, or

arguments.’” Just Puppies, Inc. v. Brown, 123 F.4th 652, 660 (4th Cir. 2024) (quoting

Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008)). A Rule 12(b)(6) motion to

dismiss “tests the sufficiency of a complaint,” Goines v. Valley Cmty. Servs. Bd., 822 F.3d

159, 165 (4th Cir. 2016) (quoting Occupy Columbia v. Haley, 738 F.3d 107, 116 (4th Cir.

2013)), and the Court’s “evaluation is thus generally limited to a review of the allegations

of the complaint itself,” plus any documents attached to the complaint as exhibits. Id. at

165–66; see also Fed. R. Civ. P. 10(c).

V. ADEA Claim

Thought counsel, Sergeant Brown filed suit on a form complaint for employment

discrimination apparently in use by the Eastern District of North Carolina. See Doc. 11 at

1. He checked the box in the “Basis for Jurisdiction” section indicating he was relying on

the Age Discrimination in Employment Act, among other statutes. Id. at 3. But in the

section entitled “Statement of Claim,” he did not check the box for discrimination on the

basis of age. Id. at 4.

As the defendants point out, Doc. 28 at 12–13, there are no allegations of

discrimination based on age in the exhibit containing Sergeant Brown’s factual

allegations. See Doc. 11-1. And in his brief in opposition to the motion to dismiss, he

did not respond to the defendants’ argument for dismissal of the age discrimination claim

or contend that he has brought such a claim. See Doc. 31 at 1.1

To the extent the complaint can be read as asserting an age discrimination claim

under the ADEA, the defendants’ motion will be granted. That claim will be dismissed.

VI. Title VII Claims

Sergeant Brown brings claims under Title VII for discrimination on the basis of

race and sex and for retaliation. Doc. 11 at 3–4; see Doc. 31 at 1. The defendants move

to dismiss.

A. Individual Defendants

Title VII does not provide a cause of action against co-employees or supervisors;

the cause of action is against the employer. Lissau v. S. Food Serv., Inc., 159 F.3d 177,

180–81 (4th Cir. 1998). To the extent the complaint can be read to assert Title VII claims

against the individual defendants in their individual capacities, those claims will be

dismissed. And to the extent the complaint can be read to assert Title VII claims against

the individual defendants in their official capacities, those claims are duplicative of the

claims against the City of Durham and will be dismissed. Armstrong v. City of

Greensboro, 190 F. Supp. 3d 450, 463 (M.D.N.C. 2016) (collecting cases); see also

1 If a non-moving party does not defend against an argument, it has waived any right to

contest the moving party’s contention in this regard. See Landress v. Tier One Solar LLC, 243 F.

Supp. 3d 633, 639 n.7 (M.D.N.C. 2017) (citing Belk, Inc. v. Meyer Corp., 679 F.3d 146, 152 n.4

(4th Cir. 2012)). But even an unopposed motion to dismiss must be supported by the record, and

the court “has an obligation to review [an unopposed motion] to ensure that dismissal is

proper.” Stevenson v. City of Seat Pleasant, 743 F.3d 411, 416 n.3 (4th Cir. 2014).

Khazanie v. Univ. of N.C. at Chapel Hill, No. 20-CV-1096, 2021 WL 5235296, at *4

(M.D.N.C. Nov. 10, 2021). This leaves Title VII claims against the City of Durham.

B. Discrimination

For Sergeant Brown’s Title VII discrimination claims to proceed, he must allege

facts allowing for a reasonable inference that the city discriminated against him “with

respect to his . . . terms, conditions, or privileges of employment, because of [his] . . .

race [or] sex.” 42 U.S.C. § 2000e-2(a)(1). But beyond a conclusory assertion of

discrimination, Doc. 11 at 4, Sergeant Brown includes no factual allegations tending to

indicate that anyone involved in decision-making made any comments about his race or

sex, referred to his race or sex, or took race or sex into account in making any

employment decision. See Doc. 11-1.

Sergeant Brown, a white male, points to allegations of four “comparators,” Doc.

31 at 13–15, but those comparators are all male, and three of the four are white. Doc. 11-

1 at ¶¶ 129–132.2 Only one of the comparators was involved in an alleged use of force,

and that comparator was a white male. Id. at ¶ 132. Nothing in these allegations gives

rise to a plausible inference of discrimination.

Simply invoking the words “discrimination,” “comparator,” or “Title VII” does

not state a claim. There must be some factual allegations tending to directly or indirectly

2 The only reason the court knows Sgt. Brown’s race and sex is because he included that

information in the EEOC charge attached to the complaint. See Doc. 11-2. There, he states that

he is a white male. Id. at 1. Sgt. Brown does not directly state the race and sex of the

comparators, but the Court assumes that “W/M” and “B/M” signify “White Male” and “Black

Male” respectively. See Doc. 11-1 at ¶¶ 129–132.

indicate that race or sex had something to do with the way Sergeant Brown was treated

by the city or with his termination. But there are no such allegations and no plausible

inference that Sergeant Brown was treated differently because of his race or sex. His

Title VII discrimination claims will be dismissed.

C. Retaliation

To plead a Title VII retaliation claim, “the complaint must allege facts supporting

a plausible inference that the employer took an adverse employment action against the

plaintiff because of the plaintiff’s protected activity.” Barbour v. Garland, 105 F.4th 579,

590 (4th Cir. 2024) (cleaned up) (quoting Holloway v. Maryland, 32 F.4th 293, 300 (4th

Cir. 2022)). An act is a protected activity when it involves “participating in a Title VII

proceeding or opposing an employer’s discriminatory practices.” McIver v. Bridgestone

Ams., Inc., 42 F.4th 398, 411 (4th Cir. 2022) (quoting Perkins v. Int’l Paper Co., 936 F.3d

196, 213 (4th Cir. 2019)); see 42 U.S.C. § 2000e-3(a).

Sergeant Brown alleges that his supervisor, Captain Zeipekkis, “had a grudge

against Sgt. Brown due to being named in previous EEOC charges filed by Sgt. Brown.”

Doc. 11-1 at ¶¶ 104–105. Sergeant Brown also alleges that he “made past EEOC

complaints about a supervisor that had groped other officers, including Sgt. Brown.” Id.

at ¶ 108. He does not allege when he filed these EEOC charges.

Filing an EEOC charge is a protected activity, see Holloway, 32 F.4th at 300, but

there must be facts alleged which allow a plausible inference that the filing of the EEOC

charge caused the adverse employment action. See Barbour, 105 F.4th at 590. To

establish a causal connection, a plaintiff may either point to facts that “suggest[] that the

adverse employment action occurred because of the protected activity” or “establish that

the adverse act bears sufficient temporal proximity to the protected activity.” Johnson v.

United Parcel Serv., Inc., 839 F. App’x 781, 784 (4th Cir. 2021).

Sergeant Brown has done neither. He does not say when he made the EEOC

charges, nor does he allege any facts that suggest his constructive discharge had any

connection to his protected activity. While a plaintiff does not have to prove his case in

the complaint, there must be something beyond a bare assertion of causation. Here, there

is nothing tending to link his past EEOC charges to his alleged constructive discharge.

And while Sergeant Brown alleges that he made a number of other complaints and

criticisms of the defendants, none were about discrimination. See, e.g., Doc. 11-1 at

¶¶ 78, 81. 121. His Title VII retaliation claim will be dismissed.

VII. Section 1983 Claims

Sergeant Brown brings claims under 42 U.S.C. § 1983 for discrimination in

violation of the Equal Protection Clause and for retaliation in violation of the First

Amendment. Doc. 11 at 3; see Doc. 31 at 1.

As with the Title VII claims, to the extent the complaint can be read to assert these

§ 1983 claims against the individual defendants in their official capacities, those claims

are duplicative of the claims against the City of Durham. See Armstrong, 190 F. Supp. 3d

at 463. Those claims will be dismissed.

A. Equal Protection

The Equal Protection Clause of the Fourteenth Amendment prohibits any state

from “deny[ing] to any person within its jurisdiction the equal protection of the laws.”

U.S. Const. amend. XIV, § 1.3 “To succeed on an equal protection claim, a plaintiff must

first demonstrate that he has been treated differently from others with whom he is

similarly situated and that the unequal treatment was the result of intentional or

purposeful discrimination.” Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir. 2001);

accord English v. Clarke, 90 F.4th 636, 649 (4th Cir. 2024). Equal protection claims

usually address “governmental classifications that affect some groups of citizens

differently than others.” Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 601 (2008)

(cleaned up) (quoting McGowan v. Maryland, 366 U.S. 420, 425 (1961)). Some plaintiffs

can support an equal protection claim with allegations that they were “irrationally singled

out as a so-called ‘class of one.’” Id. But “in the public employment context,” as here,

“the class-of-one theory of equal protection does not apply.” Id. at 598.

As discussed supra, Sergeant Brown’s allegations about race or sex are

conclusory, and his allegations of comparators are not sufficient to support an inference

that he was treated differently on the basis of his race or sex. And he cannot rely on the

“class of one” theory. See id. His equal protection claim will be dismissed.

B. First Amendment Retaliation

For a public employee to state a First Amendment claim for retaliatory discharge,

he must allege that: (1) he “was speaking as a citizen upon a matter of public concern,”

(2) his “‘interest in speaking . . . outweighed the government’s interest’ in managing the

working environment,” and (3) his “speech was a substantial factor in [his] termination

3 Sgt. Brown says his equal protection claim arises under the Fifth Amendment, Doc. 31 at 1,

but because his employer was a municipality, the claim arises under the Fourteenth Amendment.

decision.” Brooks v. Arthur, 685 F.3d 367, 371 (4th Cir. 2012) (quoting McVey v. Stacy,

157 F.3d 271, 277–78 (4th Cir. 1998)). “It is not enough that the protected expression

played a role or was a motivating factor in the retaliation; [the employee] must show that

‘but for’ the protected expression the state actor would not have taken the alleged

retaliatory action.” Porter v. Bd. of Trs. of N.C. State Univ., 72 F.4th 573, 583 (4th Cir.

2023), cert. denied, 144 S. Ct. 693 (2024) (cleaned up) (quoting Raub v. Campbell, 785

F.3d 876, 885 (4th Cir. 2015)). “Though not necessarily required, temporal proximity

may create the inference of causation,” and if “a plaintiff rests his case on temporal

proximity alone, the temporal proximity must be very close.” Id. at 582–83 (quoting

Penley v. McDowell Cnty. Bd. of Educ., 876 F.3d 646, 656 (4th Cir. 2017)).

Sergeant Brown alleges that Officer Stebbins, Captain Zeipekkis, and Chief

Andrews held grudges against him because of his past criticisms of their workplace

conduct.4 He alleges that all three acted as a result of these grudges: Officer Stebbins in

4 According to the complaint:

(1) Officer Stebbins held a grudge because Sergeant Brown told “officers under his

command to notify him immediately if Stebbins went on any call” similar to a June

2020 incident in which Officer Stebbins “pointed weapons at children playing.”

Doc. 11-1 at ¶¶ 77–78. Sergeant Brown’s directive occurred at an unspecified time

after that incident. Id. at ¶ 78.

(2) Captain Zeipekkis held a grudge because: (a) in late April and early May 2020,

Sergeant Brown complained to internal affairs about Captain Zeipekkis’s decisions

during the early pandemic related to “workplace safety” and “faulty thermometers,”

see, e.g., id. at ¶¶ 81–99, 106; and (b) Captain Zeipekkis was “named in previous

EEOC charges filed by Sgt. Brown.” Id. at ¶¶ 105.

(3) Chief Andrews held a grudge because Sergeant Brown criticized her in May 2011 for

an alleged “intimate relationship” with other employees. Id. at ¶¶ 113, 118–121.

making a false report that Sergeant Brown had used a chokehold, Doc. 11-1 at ¶¶ 80, 140,

Captain Zeipekkis in passing on the report to his supervisor Chief Andrews, id. at ¶¶ 112,

140, and Chief Andrews in relying on those reports. Id. at ¶ 140. Sergeant Brown also

alleges that he was forced to resign because of a threat of arrest “in retaliation for his

opposing improper practices by Chief Patrice Andrews.” Id. at ¶ 76.

Arguably, Sergeant Brown’s allegations about Officer Stebbins support an

inference that he would not have made the chokehold report but for Sergeant Brown’s

criticism of him. But that does not state a claim for retaliatory discharge as it is clear

from the allegations that Officer Stebbins was not involved in any decisions to begin an

investigation, impose discipline, initiate criminal charges, or affect Sergeant Brown’s

employment status. See Wilcox v. Brown, 877 F.3d 161, 170 (4th Cir. 2017) (quoting

Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977)) (“Although § 1983 must be read

against the background of tort liability that makes a man responsible for the natural

consequences of his actions, liability will only lie where it is affirmatively shown that the

official charged acted personally in the deprivation of the plaintiffs’ rights.”).

Sergeant Brown alleges Captain Zeipekkis sent the chokehold report up the chain

of command, but he does not allege that Captain Zeipekkis had any other involvement.

Doc. 11-1 at ¶ 112. His criticisms of Captain Zeipekkis occurred more than a year before

this incident, a period too long on which to rest an inference that Captain Zeipekkis

forwarded the report in retaliation. See Penley, 876 F.3d at 657 (holding that “eight to

nine months is too distant to raise an inference of causation”).

As to Chief Andrews, Sergeant Brown variously alleges that the threat of arrest

was in retaliation for opposing her “improper practices” and that she “wanted to get rid of

[him] for maybe the same or maybe different reasons” as the other defendants. Doc. 11-1

at ¶¶ 76, 140. These vague, inconsistent allegations, coupled with the more than ten

years between his criticism of her and the alleged threat of arrest, are not sufficient to

support an inference that Chief Andrews would have acted differently but for his

criticism.

Finally, to the extent the complaint can be read to assert a First Amendment claim

against the City of Durham, Sergeant Brown has not alleged facts tending to indicate the

existence of a governmental policy or custom, as is required for municipal liability. See

Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978). Even if the police chief is a

policymaker, see Howard v. City of Durham, 68 F.4th 934, 953–54 (4th Cir. 2023),

Sergeant Brown’s allegations as to her actions are insufficient, as discussed supra.

Sergeant Brown has not stated a claim against any of the defendants for First

Amendment retaliation. His First Amendment claim will be dismissed.

VIII. Wrongful Discharge in Violation of Public Policy

Under North Carolina law, individuals are not employers and cannot be held liable

for wrongful discharge. See McAdams v. N.C. Dep’t of Com., Div. of Emp. Sec., No.

COA16-196, 2016 WL 7100566, at *4 (N.C. Ct. App. Dec. 6, 2016); see also

Hilderbrand v. Pelham Transp. Corp., No. 20-CV-1020, 2021 WL 2681966, at *5

(M.D.N.C. June 30, 2021) (collecting cases). To the extent the complaint can be read to

assert a wrongful discharge claim against the individual defendants, those claims are

dismissed.

The city asserts that sovereign immunity protects it from Sergeant Brown’s

wrongful discharge claim. Doc. 28 at 18–19. “[S]overeign immunity shields the State,

its agencies, and officials sued in their official capacities from suit on state law claims

unless the State consents to suit or waives its right to sovereign immunity.” Hinson v.

City of Greensboro, 232 N.C. App. 204, 210, 753 S.E.2d 822, 827 (2014) (quoting

Toomer v. Garrett, 155 N.C. App. 462, 480, 574 S.E.2d 76, 91 (2002)). A governmental

entity may waive its “immunity to the extent it has purchased liability insurance.”

Meinck v. City of Gastonia, 263 N.C. App. 414, 417, 823 S.E.2d 459, 462 (2019)

(quoting Hart v. Brienza, 246 N.C. App. 426, 433, 784 S.E.2d 211, 216 (2016)). But

“[i]n order to overcome a defense of sovereign immunity, the complaint must specifically

allege a waiver of sovereign immunity. Absent such an allegation, the complaint fails to

state a cause of action.” Hinson, 232 N.C. App. at 210 (cleaned up) (quoting Green v.

Kearney, 203 N.C. App. 260, 268, 690 S.E.2d 755, 762 (2010)); accord Davis v.

Blanchard, 175 F. Supp. 3d 581, 601 (M.D.N.C. 2016).

In his brief in opposition to the motion to dismiss, Sergeant Brown mentions that

immunity is waived by purchase of insurance, Doc. 31 at 25, but he does not contend or

point to any allegations in the complaint that the city purchased insurance or has

otherwise waived immunity, and the Court sees no such allegations. See Doc. 11-1.

Because Sergeant Brown has not alleged a waiver of sovereign immunity, the wrongful

discharge claim will be dismissed.

Even if sovereign immunity did not bar the wrongful discharge claim, Sergeant

Brown has failed to allege facts making this claim plausible. “To state a claim for

wrongful discharge in violation of public policy, an employee has the burden of pleading

that her dismissal occurred for a reason that violates public policy.” Wilkes v. Argueta,

No. 16-CV-260, 2017 WL 1215749, at *8 (M.D.N.C. Mar. 31, 2017) (cleaned up)

(quoting Salter v. E & J Healthcare, Inc., 155 N.C. App. 685, 693, 575 S.E.2d 46, 51

(2003)).5

In his brief in opposition to the motion to dismiss, Sergeant Brown points to public

policies against extortion and “in favor of the protection of those who have complained

about governmental wrongdoing.” Doc. 31 at 20–23. Assuming without deciding that

these are public policies of North Carolina, Sergeant Brown has not sufficiently alleged

that his constructive discharge was a result of either one.

Sergeant Brown alleges that he chose to resign immediately after a captain told

him that Chief Andrews “might possibly have him charged with assault.” Doc. 11-1 at

¶ 67. That statement does not rise to the level of extortion. And as discussed supra in

relation to his First Amendment claim, Sergeant Brown has not alleged facts sufficient to

support an inference that the city retaliated against him for his complaints, even if those

criticisms were “about governmental wrongdoing.” See Doc. 31 at 22.

5 It is questionable that North Carolina “recognize[s] a claim for wrongful constructive

discharge in violation of public policy.” See Hoyle v. Cumberland Cnty. Hosp. Sys., Inc., No. 24-

CV-65, 2025 WL 747504, at *12 (E.D.N.C. Mar. 7, 2025) (collecting cases). But the defendants

did not raise this argument.

Sergeant Brown’s allegations are insufficient to state a claim for wrongful

discharge in violation of public policy.

It is ORDERED that the defendants’ motion to dismiss, Doc. 27, is GRANTED.

Judgment will be entered separately as time permits.

This the 13th day of May, 2025.

UNITED STATES DIS □ = = JUDGE

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