UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA CHARLOTTE DIVISION NO. 3:16-CV-00295
CRYSTAL ESCHERT,
Plaintiff, DEFENDANT CITY OF CHARLOTTE’S MOTION TO DISMISS AND ANSWER TO v. PLAINTIFF’S COMPLAINT
CITY OF CHARLOTTE,
Defendant.
FIRST DEFENSE (Motion to Dismiss)
The Complaint filed herein fails to state a claim upon which relief may be granted against the Defendant and should be dismissed with prejudice pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
SECOND DEFENSE
Defendant pleads all applicable immunities to which Defendant is entitled by operation of law and in bar of Plaintiff’s claims herein, including, but not limited to, governmental immunity.
THIRD DEFENSE
Without waiving any defenses or motions, Defendant, City of Charlotte (“City” or “Defendant”), responds to the specifically numbered Paragraphs of Plaintiff’s Complaint as follows:
Specifically Responding to “Parties”
1. Defendant admits Plaintiff is an adult. Except as admitted, Defendant denies the allegations contained in Paragraph 1 of Plaintiff’s Complaint for lack of sufficient knowledge or information to form a belief as to the truth or falsity of the matters contained therein.
2. Defendant admits that it is a municipal corporation organized by City Charter under §160A of the North Carolina General Statutes with a place of business in Charlotte, North Carolina. Except as admitted, Defendant denies the allegations contained in Paragraph 2 of Plaintiff’s Complaint.
Case 3:16-cv-00295-FDW-DCK Document 6 Filed 07/05/16 Page 1 of 48 3. Defendant admits the allegations contained in Paragraph 3 of Plaintiff’s Complaint.
4. Defendant admits that the City of Charlotte (“City”) is self-insured for certain, but not all, acts and omissions and that it maintains an excess insurance policy for certain, but not all, acts and omissions. Defendant further admits that both the City’s self-insurance and excess insurance are capped at certain dollar amounts. Defendant further admits that the City and its employees acting in their official capacities are entitled to, and therefore hereby assert, governmental immunity from some or all of the damages alleged, to the extent allowed by law. Except as admitted, Defendant denies the allegations contained in Paragraph 4 of Plaintiff’s Complaint.
Specifically Responding to “Jurisdiction and Venue”
5. Defendant denies that any unlawful practices occurred. Defendant admits that the events alleged in the Complaint occurred in Mecklenburg County, North Carolina. Except as specifically admitted and denied, Defendant denies the allegations contained in Paragraph 5 of Plaintiff’s Complaint.
6. Defendant admits that venue is proper in Mecklenburg County. Defendant further admits that subject matter jurisdiction was proper in Mecklenburg County Superior Court as a court of original jurisdiction but also alleges that subject matter jurisdiction is appropriate in this Court under 28 U.S.C. §1331 as a court of original jurisdiction for the federal claims brought in this lawsuit. Defendant also asserts that the Court has supplemental jurisdiction under 28 U.S.C. § 1367(a) of all remaining claims alleged in the Complaint. Except as admitted, Defendant denies the allegations contained in Paragraph 6 of Plaintiff’s Complaint.
Specifically Responding to “Administrative Procedures”
7. Defendant admits upon information and belief that Plaintiff submitted an Intake Questionnaire with the Equal Employment Opportunity Commission (“EEOC”) on March 24, 2015. Except as admitted, Defendant denies the allegations contained in Paragraph 7 of Plaintiff’s Complaint.
8. Defendant admits upon information and belief that Plaintiff received a Notice of Right to Sue issued per her request on April 19, 2016 signifying that the EEOC had concluded its investigation and was choosing not to litigate Plaintiff’s claim on her behalf against the Defendant. Except as admitted, Defendant denies the allegations contained in Paragraph 8 of Plaintiff’s Complaint.
9. Defendant admits upon information and belief that on or about March 24, 2015 Plaintiff submitted a complaint with the North Carolina Department of Labor (“NCDOL”) against the City of Charlotte Fire Department (“CFD”) alleging a violation of the North Carolina Retaliatory Employment Discrimination Act. Except as admitted, Defendant denies the allegations contained in Paragraph 9 of Plaintiff’s Complaint.
2 Case 3:16-cv-00295-FDW-DCK Document 6 Filed 07/05/16 Page 2 of 48 10. Defendant admits upon information and belief that Plaintiff received a Notice of Right to Sue from the NCDOL on or about January 21, 2016 indicating that the Commissioner of Labor was choosing not to pursue a civil action in Superior Court on behalf of Plaintiff. Except as admitted, Defendant denies the allegations contained in Paragraph 10 of Plaintiff’s Complaint.
11. Defendant denies the allegations contained in Paragraph 11 of Plaintiff’s Complaint.
Specifically Responding to “Introduction and Nature of Case”
12. Defendant admits that Plaintiff was an employee of the CFD and that Plaintiff has filed a Complaint against the Defendant. Defendant further admits that the Complaint is a document in writing that speaks for itself. Defendant further admits that the NCDOL issued a right to sue letter to the Plaintiff signifying that the that the Commissioner of Labor was choosing not to pursue a civil action in Superior Court on behalf of Plaintiff. Defendant further admits that Allison Van Laningham (“Van Laningham”) of Turning Point Litigation conducted an investigation into this matter and issued a report about that investigation (the “Van Laningham Report”) which stated that they did not find direct evidence that Plaintiff’s termination was retaliatory and unrelated to her Facebook posts and that the better evidence led her to conclude that Plaintiff was not the subject of retaliatory termination. Except as admitted, Defendant denies the allegations contained in Paragraph 12 of Plaintiff’s Complaint.
Specifically Responding to “Background”
13. Defendant admits that Plaintiff worked as a fire investigator for the CFD. Except as admitted, Defendant denies the allegations contained in Paragraph 13 of Plaintiff’s Complaint.
14. Defendant denies the allegations contained in Paragraph 14 of Plaintiff’s Complaint for lack of sufficient knowledge or information to form a belief as to the truth or falsity of the matters contained therein.
15. Defendant admits the allegations contained in Paragraph 15 of Plaintiff’s Complaint.
16. Defendant admits the allegations contained in Paragraph 16 of Plaintiff’s Complaint upon information and belief.
17. Defendant admits the allegations contained in Paragraph 17 of Plaintiff’s Complaint.
18. Defendant admits the allegations contained in Paragraph 18 of Plaintiff’s Complaint.
19. Defendant denies the allegations contained in Paragraph 19 of Plaintiff’s Complaint.
3 Case 3:16-cv-00295-FDW-DCK Document 6 Filed 07/05/16 Page 3 of 48 20. Defendant denies the allegations contained in Paragraph 20 of Plaintiff’s Complaint for lack of sufficient knowledge or information to form a belief as to the truth or falsity of the matters contained therein.
21. Defendant admits that Plaintiff participated in training classes while employed by the CFD with the knowledge and approval of her supervisors. Except as admitted, Defendant denies the allegations contained in Paragraph 21 of Plaintiff’s Complaint.
22. Defendant admits the allegations contained in Paragraph 22 of Plaintiff’s Complaint upon information and belief.
23. Defendant admits the allegations contained in Paragraph 23 of Plaintiff’s Complaint upon information and belief.
24. Defendant admits the allegations contained in Paragraph 24 of Plaintiff’s Complaint upon information and belief.
25. Defendant denies the allegations contained in Paragraph 25 of Plaintiff’s Complaint for lack of sufficient knowledge or information to form a belief as to the truth or falsity of the matters contained therein.
26. Defendant denies the allegations contained in Paragraph 26 of Plaintiff’s Complaint for lack of sufficient knowledge or information to form a belief as to the truth or falsity of the matters contained therein.
Specifically Responding to “Fire Investigator with the Fire Department”
27. Defendant admits that the responsibilities of a fire investigator for the CFD include, among other things, responding to and investigating fire incidents to determine whether a fire was accidental in nature or arson; responding to post-blaze scenes; interviewing witnesses including but not limited to burn victims in hospitals to document injuries for statistical purposes; responding to scenes in which fire-related death occurred; attending court hearings and trials when necessary to present evidence and/or give testimony. Except as admitted, Defendant denies the allegations contained in Paragraph 27 of Plaintiff’s Complaint.
28. Defendant admits the allegations contained in Paragraph 28 of Plaintiff’s Complaint.
29. Defendant denies the allegations contained in Paragraph 29 of Plaintiff’s Complaint for lack of sufficient knowledge or information to form a belief as to the truth or falsity of the matters contained therein.
30. Defendant admits that one of the job duties of fire investigators is to attend court hearings and trials when necessary to present evidence and/or give testimony and specifically denies that it is rare for fire investigators to be called upon to testify in court. With regard to Plaintiff’s awareness of fire investigators testifying in court, Defendant denies the allegations
4 Case 3:16-cv-00295-FDW-DCK Document 6 Filed 07/05/16 Page 4 of 48 contained in Paragraph 30 of Plaintiff’s Complaint for lack of sufficient knowledge or information to form a belief as to the truth or falsity of the matters contained therein.
31. Defendant denies the allegations contained in Paragraph 31 of Plaintiff’s Complaint.
32. Defendant admits that Plaintiff’s Performance Reviews are documents in writing that speak for themselves. To the extent the allegations contained in Paragraph 32 of Plaintiff’s Complaint contradict those writings, the allegations are denied.
33. Defendant admits that Plaintiff’s Performance Reviews concluded that she met expectations for the years she was employed by the CFD and Defendant further admits that Plaintiff received a merit increase each year she was employed by the CFD. Except as admitted, Defendant denies the allegations contained in Paragraph 33 of Plaintiff’s Complaint.
34. Defendant admits that Plaintiff’s 2013 Performance Review is a document in writing that speaks for itself. Defendant further admits that an “A” rating is not the highest rating a Fire Department employee can receive on their performance review. To the extent the allegations contained in Paragraph 34 of Plaintiff’s Complaint contradict that writing, the allegations are denied.
35. Defendant denies the allegations contained in Paragraph 35 of Plaintiff’s Complaint for lack of sufficient knowledge or information to form a belief as to the truth or falsity of the matters contained therein.
36. Defendant admits the allegations contained in Paragraph 36 of Plaintiff’s Complaint that Ray Eschert approached Chief Hannan at an event outside the Fire Department and told Chief Hannan that his daughter in law was a fire investigator with the department and mentioned her name. It is further admitted that Chief Hannan, being polite, indicated that he knew Ms. Eschert and stated that he had heard she was doing a good job. It is further admitted that at the time of that conversation Chief Hannan did not specifically know who Ms. Eschert was and he was merely trying to be polite. Except as admitted, Defendant denies the allegations contained in Paragraph 36 of Plaintiff’s Complaint.
Specifically Responding to “Fire Department and Chief Hannan”
37. Defendant admits the allegations contained in Paragraph 37 of Plaintiff’s Complaint.
38. Defendant admits the allegations contained in Paragraph 38 of Plaintiff’s Complaint.
39. Defendant admits the allegations contained in Paragraph 39 of Plaintiff’s Complaint.
5 Case 3:16-cv-00295-FDW-DCK Document 6 Filed 07/05/16 Page 5 of 48 40. Defendant admits that the Fire Chief is managed by and reports to the City Manager. Except as admitted, Defendant denies the allegations contained in Paragraph 40 of Plaintiff’s Complaint.
41. Defendant admits that Chief Hannan has been the Fire Chief for the CFD since November 15, 2007. Defendant further admits that Chief Hannan provides leadership to the CFD in his capacity as Chief. Except as admitted, Defendant denies the allegations contained in Paragraph 41 of Plaintiff’s Complaint.
42. Defendant denies the allegations contained in Paragraph 42 of Plaintiff’s Complaint, including sub-paragraphs (a) through (h).
43. Defendant denies the allegations contained in Paragraph 43 of Plaintiff’s Complaint.
44. Defendant denies the allegations contained in Paragraph 44 of Plaintiff’s Complaint.
45. Defendant denies the allegations contained in Paragraph 45, including sub- paragraphs (a) through (d), of Plaintiff’s Complaint.
46. Defendant denies the allegations contained in Paragraph 46 of Plaintiff’s Complaint.
47. Defendant denies the allegations contained in Paragraph 47, including sub- paragraphs (a) through (e), of Plaintiff’s Complaint.
Specifically Responding to “Arson Task Force Building, 1222 Statesville Avenue and 1517 North Graham Street”
48. Defendant denies the allegations contained in Paragraph 48 of Plaintiff’s Complaint.
49. Defendant admits that in or about the Spring of 2012 members of the Fire Department’s Arson Task Force were told that the plan at that time was to move them to a new location located at 1222 Statesville Avenue and the budget allocated for the project was around $1.87 million. Except as admitted, Defendant denies the allegations contained in Paragraph 49 of Plaintiff’s Complaint.
50. Defendant admits that the City paid approximately $78,900 for a new roof to be placed on the building at 1222 Statesville Avenue to halt ongoing water damage and paid approximately $13,450 for electrical wiring at 1222 Statesville Avenue after the copper wiring in the building was stripped by vandals. Defendant further admits that the City paid approximately $151,874 for an architect to develop plans for 1222 Statesville Avenue. Except as specifically admitted, Defendant denies the allegations contained in Paragraph 50 of Plaintiff’s Complaint.
6 Case 3:16-cv-00295-FDW-DCK Document 6 Filed 07/05/16 Page 6 of 48 51. Defendant admits the allegations contained in Paragraph 51 of the Complaint.
52. Defendant admits the allegations contained in Paragraph 52 of the Complaint.
53. Defendant denies the allegations contained in Paragraph 53 of the Complaint.
54. Defendant admits that the final cost of the building and land cost for the new Fire Department Headquarters was approximately $16 million. Except as admitted, Defendant denies the allegations contained in Paragraph 54 of Plaintiff’s Complaint.
55. Defendant admits upon information and belief that Plaintiff and others have expressed opinions to the media about the cost of the Fire Department Headquarters building, which select portions of the media then report. Except as admitted, Defendant denies the allegations contained in Paragraph 55 of Plaintiff’s Complaint.
56. Defendant admits that once the City determined that it did not make sense to move forward with the original plans to make the building located at 1222 Statesville Avenue the Arson Task Force building, the plan shifted to demolish the building and use the space in conjunction with the Joint Communications Center. Except as admitted, Defendant denies the allegations contained in Paragraph 56 of Plaintiff’s Complaint.
57. Defendant denies the allegations contained in Paragraph 57 of Plaintiff’s Complaint for lack of sufficient information to form a belief as to the truth or falsity of the matters contained therein.
58. Defendant admits that after approximately $224,224 (approximately $78,900 for the roof, $13,450 for electrical work and $151,874 for an architect to develop plans for the renovation) was spent on the building at 1222 Statesville Avenue, it was determined that the cost of necessary renovations would exceed the available funds for the project and thus the City paid to have the building demolished so the City could utilize the land effectively. Except as admitted, Defendant denies the allegations contained in Paragraph 58 of Plaintiff’s Complaint.
59. Defendant admits the building located at 1517 North Graham was a fully renovated building that was being used as offices up until the time the City purchased the building. Defendant further admits that while the 1517 North Graham building was older than the 1222 Statesville Avenue building, the 1517 North Graham building was renovated and being used as offices while the 1222 Statesville Avenue building was not and thus the 1517 North Graham Building would require less work to make it the Arson Task Force building. Except as admitted, Defendant denies the allegations contained in Paragraph 59 of Plaintiff’s Complaint.
60. Defendant admits that there were construction delays on the Arson Task Force building due to weather and subcontractors. Except as admitted, Defendant denies the allegations contained in Paragraph 60 of Plaintiff’s Complaint.
61. Defendant admits upon information and belief that Plaintiff emailed Chief Fire Investigator Paul Wilkinson (“Wilkinson”) and Senior Fire Investigator David Williams
7 Case 3:16-cv-00295-FDW-DCK Document 6 Filed 07/05/16 Page 7 of 48 (“Williams”) on August 7, 2014 reporting that the fence at 1517 North Graham Street had "some gaps and holes" and mentioning foot traffic on the other side of the fence in the evenings. Defendant further admits that Wilkinson responded to Plaintiff’s email six minutes later and advised that he had previously met with someone to specifically address the fence issues and that Hartsell Fencing was already scheduled to resolve the issue and Plaintiff responded by saying "Great! Thanks!" Except as admitted, Defendant denies the allegations contained in Paragraph 61 of Plaintiff’s Complaint.
62. Defendant denies the allegations contained in Paragraph 62 of Plaintiff’s Complaint for lack of sufficient knowledge or information to form a belief as to the truth or falsity of the matters contained therein.
63. Defendant admits that Chief Hannan (“Chief Hannan”) and Deputy Chief Granger (“Deputy Chief Granger”) have been introduced to Ray Eschert and are now aware that he has relationships in the community and with certain members of City Council. Defendant admits that Chief Hannan and Deputy Chief Granger have attended Ballantyne Breakfast Club meetings where Ray Eschert was in attendance. Except as admitted, Defendant denies the allegations contained in Paragraph 63 of Plaintiff’s Complaint for lack of sufficient knowledge or information to form a belief as to the truth or falsity of the matters contained therein.
64. Defendant admits that Williams and Wilkinson toured the 1517 North Graham building with Plaintiff and her father-in-law. Except as admitted, Defendant denies the allegations contained in Paragraph 64 of Plaintiff’s Complaint for lack of sufficient knowledge or information to form a belief as to the truth or falsity of the matters contained therein.
65. Defendant admits that Williams and Wilkinson arrived in the same vehicle to 1517 North Graham Street, and that one of them had a key to the building that was used to enter the building. It is further admitted that Crystal Eschert did not have a key to the building. Except as admitted, Defendant denies the allegations contained in Paragraph 65 of Plaintiff’s Complaint for lack of sufficient knowledge or information to form a belief as to the truth or falsity of the matters contained therein.
66. Defendant admits that Plaintiff and her father-in-law expressed complaints about the building but denies that Williams and Wilkinson noted that the building was in a “very poor condition.” Except as admitted, Defendant denies the allegations contained in Paragraph 66 of Plaintiff’s Complaint.
67. Defendant admits that Wilkinson’s April 9, 2014 email is a document in writing that speaks for itself. To the extent the allegations contained in Paragraph 67 of Plaintiff’s Complaint contradict that writing, the allegations are denied.
68. Defendant denies the allegations contained in Paragraph 68 of Plaintiff’s Complaint for lack of sufficient knowledge or information to form a belief as to the truth or falsity of the matters contained therein.
8 Case 3:16-cv-00295-FDW-DCK Document 6 Filed 07/05/16 Page 8 of 48 69. Defendant denies the allegations contained in Paragraph 69 of Plaintiff’s Complaint for lack of sufficient knowledge or information to form a belief as to the truth or falsity of the matters contained therein.
70. Defendant admits the allegations contained in Paragraph 70 of Plaintiff’s Complaint that at a District Seven Council Meeting on or about April 12, 2014, Randy Harrington, then Assistant Director of Budget and Finance, spoke with Ray Eschert about the funding necessary to complete repairs and renovations to the Arson Task Force Building. Except as specifically admitted, Defendant denies the allegations contained in Paragraph 70 of Plaintiff’s Complaint.
71. Defendant admits that Ray Eschert’s April 13, 2014 email is a document in writing that speaks for itself. To the extent the allegations contained in Paragraph 71 of Plaintiff’s Complaint contradict that writing, the allegations are denied.
72. Defendant admits that Harrington’s April 14, 2014 email is a document in writing that speaks for itself. To the extent the allegations contained in Paragraph 72 of Plaintiff’s Complaint contradict that writing, the allegations are denied.
73. Defendant admits that Harrington’s April 14, 2014 email is a document in writing that speaks for itself. To the extent the allegations contained in Paragraph 73 of Plaintiff’s Complaint contradict that writing, the allegations are denied.
74. Defendant admits that the exact date for moving into the 1517 North Graham building was never set but a tentative date of "summer of 2014" was communicated to the Arson Task Force and that a limited number of employees of the Arson Task Force, specifically the Fire Educators, did in fact begin occupying offices within the building in August 2014. Except as admitted, Defendant denies the allegations contained in Paragraph 74 of Plaintiff’s Complaint.
75. Defendant denies that “not much progress had been made on the renovations to the building.” Except as specifically denied, Defendant denies the allegations contained in Paragraph 75 of Plaintiff’s Complaint for lack of sufficient knowledge or information to form a belief as to the truth or falsity of the matters contained therein.
76. Defendant admits that Williams, Wilkinson, Deputy Chief Kinniburgh (“Deputy Chief Kinniburgh”) and Deputy Chief Granger had discussions about the 1517 North Graham Street building and those discussions included the topics of possible repairs or changes that needed to be made to the building as well as the use of funds for the Logistics building. Defendant further admits that, consistent with standard procedure, Deputy Chief Granger informed Deputy Chief Kinniburgh, Williams and Wilkinson that only one of them would be needed on the committee going forward because the Fire Department had reached a point in the planning process where the input of all three was no longer needed. Except as admitted, Defendant denies the allegations contained in Paragraph 76 of Plaintiff’s Complaint.
77. Defendant denies the allegations contained in Paragraph 77 of Plaintiff’s Complaint.
9 Case 3:16-cv-00295-FDW-DCK Document 6 Filed 07/05/16 Page 9 of 48 78. Defendant denies the allegations contained in Paragraph 78 of Plaintiff’s Complaint.
79. Defendant admits that the Fire Investigators were told they would be moving into the 1517 North Graham Building in the summer of 2014. Except as admitted, Defendant denies the allegations contained in Paragraph 79 of the Plaintiff’s Complaint for lack of sufficient knowledge or information to form a belief as to the truth or falsity of the matters contained therein.
80. Defendant admits that Claire Fallon (“Fallon”) was the Chairperson of the Community Safety Committee of the Charlotte City Council in August 2014 and that Arson Task Force members were given keys to the 1517 North Graham Street building on August 1, 2014. Except as admitted, Defendant denies the allegations contained in Paragraph 80 of Plaintiff’s Complaint for lack of sufficient knowledge or information to form a belief as to the truth or falsity of the matters contained therein.
81. Defendant admits that the Fire Educators were moving into the 1517 North Graham Street building on or about August 12-13, 2014. Except as admitted, Defendant denies the allegations contained in Paragraph 81 of Plaintiff’s Complaint for lack of sufficient knowledge or information to form a belief as to the truth or falsity of the matters contained therein.
82. Defendant denies that there were air or water quality issues with the building when the Fire Investigators moved into the building. Except as specifically denied, Defendant denies the allegations contained in Paragraph 82 of Plaintiff’s Complaint for lack of sufficient knowledge or information to form a belief as to the truth or falsity of the matters contained therein.
83. Defendant denies the allegations contained in Paragraph 83 of Plaintiff’s Complaint for lack of sufficient knowledge or information to form a belief as to the truth or falsity of the matters contained therein.
84. Defendant denies the allegations contained in Paragraph 84 of Plaintiff’s Complaint for lack of sufficient knowledge or information to form a belief as to the truth or falsity of the matters contained therein.
85. Defendant admits that in the course of the EEOC and NCDOL complaint processes initiated by Plaintiff prior to the filing of this most recent lawsuit, Defendant became aware that Plaintiff sent an email to Fallon from her personal email account to Fallon’s personal email account about the 1517 North Graham Street building and that Plaintiff did not copy Williams, Wilkinson or anyone at CFD on the email. Defendant further admits that Plaintiff’s August 14, 2014 email is a document in writing that speaks for itself. To the extent the allegations contained in Paragraph 85 of Plaintiff’s Complaint contradict that writing, the allegations are denied.
10 Case 3:16-cv-00295-FDW-DCK Document 6 Filed 07/05/16 Page 10 of 48 86. Defendant admits that Eschert got permission from Williams to tell Fallon that she could contact him directly if she had questions that no one else could answer for her. Defendant further admits that Fallon never called Williams. Except as admitted, Defendant denies the allegations contained in Paragraph 86 of Plaintiff’s Complaint.
87. Defendant denies the allegations contained in Paragraph 87 of Plaintiff’s Complaint.
88. Defendant denies the allegations contained in Paragraph 88 of Plaintiff’s Complaint.
89. Defendant denies the allegations contained in Paragraph 89 of Plaintiff’s Complaint.
90. Defendant admits that Deputy Chief Granger and Chief Hannan were aware that Fallon would be touring the 1517 North Graham Street building on August 20, 2014 and both planned to attend the tour. Except as admitted, Defendant denies the allegations contained in Paragraph 90 of Plaintiff’s Complaint.
91. Defendant denies the allegations contained in Paragraph 91 of Plaintiff’s Complaint.
92. Defendant denies the allegations contained in Paragraph 92 of Plaintiff’s Complaint for lack of sufficient knowledge or information to form a belief as to the truth or falsity of the matters contained therein.
93. Defendant admits that the Van Laningham Report is a document in writing that speaks for itself. To the extent the allegations contained in Paragraph 93 of Plaintiff’s Complaint contradict that writing, the allegations are denied.
94. Defendant admits that Eschert complained to Williams about possible mold in the prior Arson Task Force building located at 1215 South Boulevard, that testing was done to investigate the complaint and that all of the test results came back as negative for mold. Except as admitted, Defendant denies the allegations contained in Paragraph 94 of Plaintiff’s Complaint.
95. Defendant admits upon information and belief that at some point in time City management learned that someone sent Fallon a complaint about 1517 North Graham Street, and that the complaints to Fallon are what led to the tour Fallon took of 1517 North Graham Street. Except as admitted, Defendant denies the allegations contained in Paragraph 95 of Plaintiff’s Complaint.
96. Defendant admits that in the course of the EEOC and NCDOL complaint processes initiated by Plaintiff prior to the filing of this most recent lawsuit, Defendant became aware that Plaintiff sent an email to Fallon from her personal email account to Fallon’s personal email account about the 1517 North Graham Street building and Plaintiff did not copy Williams, Wilkinson or anyone at CFD on the email. Defendant further admits that Plaintiff’s August 14,
11 Case 3:16-cv-00295-FDW-DCK Document 6 Filed 07/05/16 Page 11 of 48 2014 email is a document in writing that speaks for itself. To the extent the allegations contained in Paragraph 96 of Plaintiff’s Complaint contradict that writing, the allegations are denied. Defendant expressly denies the validity of Plaintiff’s complaints as outlined in Paragraph 96 of Plaintiff’s Complaint, including sub-paragraphs (a) through (g).
97. Defendant admits that Plaintiff’s August 14, 2014 email is a document in writing that speaks for itself. To the extent the allegations contained in Paragraph 97 of Plaintiff’s Complaint contradict that writing, the allegations are denied.
98. Defendant admits the allegations contained in Paragraph 98 of Plaintiff’s Complaint.
99. Defendant admits the allegations contained in Paragraph 99 of Plaintiff’s Complaint.
100. Defendant admits that certain members of City management were aware that Fallon planned to tour 1517 North Graham Street and certain members were aware that Carlee would tour it with her. Except as admitted, Defendant denies the allegations contained in Paragraph 100 of Plaintiff’s Complaint.
101. Defendant admits the allegations contained in Paragraph 101 of Plaintiff’s Complaint.
102. Defendant admits the allegations contained in Paragraph 102 of Plaintiff’s Complaint.
103. Defendant admits that work continued on the 1517 North Graham Street building as scheduled both before and after Ms. Fallon’s tour of the building and was not influenced by her tour. Except as admitted, Defendant denies the allegations contained in Paragraph 103 of Plaintiff’s Complaint.
104. Defendant denies the allegations contained in Paragraph 104 of the Plaintiff’s Complaint for lack of sufficient knowledge or information to form a belief as to the truth or falsity of the matters contained therein.
105. Defendant admits the allegations contained in Paragraph 105 of Plaintiff’s Complaint.
106. Defendant denies the allegations contained in Paragraph 106 of Plaintiff’s Complaint.
107. Defendant admits that Wilkinson sent out an email alerting employees not to be in or at the 1517 North Graham Street building so that the building could be toured without interruption. Except as admitted, Defendant denies the allegations contained in Paragraph 107 of Plaintiff’s Complaint.
12 Case 3:16-cv-00295-FDW-DCK Document 6 Filed 07/05/16 Page 12 of 48 108. Defendant admits that in the course of the EEOC and NCDOL complaint processes initiated by Plaintiff prior to the filing of this most recent lawsuit they became aware that on August 19, 2014 Plaintiff sent emails to Claire Fallon from her personal email account to Fallon’s personal email account about her upcoming tour of the 1517 North Graham Street building that included a two-page list of complaints and Plaintiff did not copy Williams, Wilkinson or anyone at CFD on the emails. Defendant further admits that Plaintiff’s August 19, 2014 email is a document in writing that speaks for itself. To the extent the allegations contained in Paragraph 108 of Plaintiff’s Complaint contradict that writing, the allegations are denied.
109. Defendant admits upon information and belief that Plaintiff forwarded an email to Fire Investigator Thomas Goforth on or about August 19, 2014 and that he did not respond to such email. Defendant further admits that in the course of the EEOC and NCDOL complaint processes initiated by Plaintiff prior to the filing of this most recent lawsuit, they became aware that on August 19, 2014 Plaintiff sent emails to Fallon from her personal email account to Fallon’s personal email account about her upcoming tour of the 1517 North Graham Street building. Except as admitted, Defendant denies the allegations contained in Paragraph 109 of Plaintiff’s Complaint.
110. Defendant admits that Plaintiff’s August 19, 2014 is a document in writing that speaks for itself and denies the allegations contained in Paragraph 110 to the extent they contradict such writing. Defendant specifically denies the validity of the allegations raised by Plaintiff in her August 19, 2014 email as set forth in subparagraphs (a) through (r). Except as specifically admitted and denied, Defendant denies the allegations contained in Paragraph 110 of Plaintiff’s Complaint.
111. Defendant admits the allegations contained in Paragraph 111 of Plaintiff’s Complaint.
112. Defendant admits that Fallon asked about the requirements for permits for the work being performed and Superintendent Rutledge mistakenly believed that permits were not required to conduct general maintenance work and thus told Fallon they were not required. Defendant further admits that Rutledge subsequently learned otherwise and admitted her mistake. Except as admitted, Defendant denies the allegations contained in Paragraph 112 of Plaintiff’s Complaint.
113. Defendant admits that Rutledge was generally aware of the type of work being done at the 1517 North Graham Street building and further admits that Rutledge retracted her statement about the need for permits for the work being done once she realized she was mistaken about the need for permits for the type of work being done. Defendant further admits upon information and belief that Rutledge’s son-in-law works for the CFD. Except as admitted, Defendant denies the allegations contained in Paragraph 113 of the Plaintiff’s Complaint.
114. Defendant admits that some of the jobs performed by the CFD involve checking for permits. Except as admitted, Defendant denies the allegations contained in Paragraph 114 of Plaintiff’s Complaint.
13 Case 3:16-cv-00295-FDW-DCK Document 6 Filed 07/05/16 Page 13 of 48 115. Defendant admits that Fallon asked questions at various times about permits, inspections, finances, the budget, health and safety issues and whether any employees were currently working there. Except as admitted, Defendant denies the allegations contained in Paragraph 115 of Plaintiff’s Complaint.
116. Defendant denies the allegations contained in Paragraph 116 of Plaintiff’s Complaint.
117. Defendant denies the allegations contained in Paragraph 117 of Plaintiff’s Complaint.
118. Defendant admits that the Van Laningham Report is a document in writing that speaks for itself. To the extent the allegations contained in Paragraph 118 of Plaintiff’s Complaint contradict that writing, the allegations are denied.
119. Defendant denies that the statements contained in the Van Laningham Report are inconsistent with the opinions Fallon expressed during the tour. Except as expressly denied, Defendant denies the allegations contained in Paragraph 119 of Plaintiff’s Complaint for lack of sufficient knowledge or information to form a belief as to the truth or falsity of the matters contained therein.
Specifically Responding to “Facebook and ‘Linda Havery’”
120. Defendant admits upon information and belief that Plaintiff maintained a personal Facebook account in 2014. Except as admitted, Defendant denies the allegations contained in Paragraph 120 of Plaintiff’s Complaint for lack of sufficient knowledge or information to form a belief as to the truth or falsity of the matters contained therein.
121. Defendant admits upon information and belief that Plaintiff published a post on her Facebook page on or about August 20, 2014 the content of which is set forth below:
14 Case 3:16-cv-00295-FDW-DCK Document 6 Filed 07/05/16 Page 14 of 48
(hereinafter referred to as the “Ferguson Facebook Post”). Except as admitted, Defendant denies the allegations contained in Paragraph 121 of Plaintiff’s Complaint for lack of sufficient knowledge or information to form a belief as to the truth or falsity of the matters contained therein.
122. Defendant admits that the Ferguson Facebook Post stated “White guy shot by police yesterday near Ferguson…….. Where is Obama? Where is Holder? Where is Al Sharpton? Where are Trayvon Martin’s parents? Where are all the white guy’s supporters? So WHY is everyone MAKING it a racial issue?!? So tired of hearing it’s a racial thing. If you are a thug and worthless to society, it’s not race- You’re just a waste no matter what religion, race or sex you are!” Except as admitted, Defendant denies the allegation contained in Paragraph 122 of Plaintiff’s Complaint.
123. Defendant admits upon information and belief that the Ferguson Facebook Post was an expression of Plaintiff’s personal opinions. Except as admitted, Defendant denies the allegations contained in Paragraph 123 of Plaintiff’s Complaint.
124. Defendant denies the allegations contained in Paragraph 124 of Plaintiff’s Complaint.
125. Defendant admits that Eschert’s Ferguson Facebook Post purports to be about a white citizen who was shot by an African-American police officer. Defendant further admits that Plaintiff left the post up on her Facebook page long enough for other people to see it as evidenced by Linda Havery’s email. Except as admitted, Defendant denies the allegations contained in Paragraph 125 of Plaintiff’s Complaint for lack of sufficient knowledge or information to form a belief as to the truth or falsity of the matters contained therein.
15 Case 3:16-cv-00295-FDW-DCK Document 6 Filed 07/05/16 Page 15 of 48 126. Defendant admits that the events that occurred in Ferguson, Missouri had been (and continue to be) a frequent topic of media discussion around the time of Plaintiff’s post and thereafter. Except as admitted, Defendant denies the allegations contained in Paragraph 126 of Plaintiff’s Complaint for lack of sufficient knowledge or information to form a belief as to the truth or falsity of the matters contained therein.
127. Defendant denies the allegations contained in Paragraph 127 of Plaintiff’s Complaint for lack of sufficient knowledge or information to form a belief as to the truth or falsity of the matters contained therein.
128. Defendant admits the allegations contained in Paragraph 128 of Plaintiff’s Complaint upon information and belief.
129. Defendant admits that the Van Laningham Report is a document in writing that speaks for itself. To the extent the allegations contained in Paragraph 129 of Plaintiff’s Complaint contradict that writing, the allegations are denied.
130. Defendant admits the allegations contained in Paragraph 130 of Plaintiff’s Complaint upon information and belief.
131. Defendant admits upon information and belief that the investigation into Linda Havery’s Facebook account revealed that the account was created around 12:05 p.m. on August 20, 2014. Defendant admits that Fallon was scheduled to tour the 1517 North Graham building on August 20, 2014. Except as admitted, Defendant denies the allegations contained in Paragraph 131 of Plaintiff’s Complaint.
132. Defendant admits that Williams was Eschert’s direct supervisor. Defendant further admits that Williams and Bennett were Facebook “friends” with Plaintiff as of August 2014 and Defendant further admits that neither Williams or Bennett saw Plaintiff’s Ferguson Facebook post and thus did not advise Plaintiff it was insensitive, inappropriate, racist or in violation of the City or CFD policies. Defendant further admits that approximately 14 months earlier Plaintiff posted something on Facebook that was also considered to be inappropriate and she was given a verbal warning about that post from Williams. Except as admitted, Defendant denies the allegations contained in Paragraph 132 of Plaintiff’s Complaint.
133. Defendant admits that Wilkinson was aware of but did not see Eschert’s Ferguson Facebook post and therefore did not have sufficient knowledge or information to advise Plaintiff that her Ferguson Facebook Post was insensitive, inappropriate, racist or in violation of City or FRD policies. Except as admitted, Defendant denies the allegations contained in Paragraph 133 of Plaintiff’s Complaint.
134. Defendant admits that on August 26, 2014 at approximately 11:49 p.m. Chief Hannan and then CMPD Chief Rodney Monroe (“Chief Monroe”) were sent an email from Linda Havery that is a document in writing that speaks for itself and is set forth below:
16 Case 3:16-cv-00295-FDW-DCK Document 6 Filed 07/05/16 Page 16 of 48
To the extent the allegations contained in Paragraph 134 of Plaintiff’s Complaint contradict that writing, the allegations are denied.
135. Defendant denies that Chief Hannan received the first email from Linda Havery. Defendant admits that Chief Monroe received the first email from Linda Havery and that the email did not have the post attached. Except as specifically admitted and denied, Defendant denies the allegations contained in Paragraph 135 of Plaintiff’s Complaint.
136. Defendant admits that the Van Laningham Report states that the email addresses “did not come up immediately through publicly-available source and did not appear easy to identify.” Except as admitted, Defendant denies the allegations contained in Paragraph 136 of Plaintiff’s Complaint.
137. Defendant admits the allegations contained in Paragraph 137 of Plaintiff’s Complaint upon information and belief.
138. Defendant admits that Chief Hannan received an email from Pearsall at 8:10 a.m. on August 27, 2014 forwarding the Ferguson Facebook Post and that Chief Hannan forwarded that email to Deputy Chief Kinniburgh at 8:12 a.m. stating “I think it is an arson investigator.” Defendant further admits that the emails are documents in writing that speak for themselves. To the extent the allegations contained in Paragraph 138 of Plaintiff’s Complaint contradict those writings, the allegations are denied.
139. Defendant admits that Chief Hannan forwarded Pearsall’s 8:10 a.m. email to Deputy Chief Kinniburgh and copied Kjeldsen, Deputy Chief Dulin, Deputy Chief Granger and Battalion Chief Key at 8:13 a.m. Except as admitted, Defendant denies the allegations contained in Paragraph 139 of Plaintiff’s Complaint.
140. Defendant admits the allegations contained in Paragraph 140 of Plaintiff’s Complaint.
17 Case 3:16-cv-00295-FDW-DCK Document 6 Filed 07/05/16 Page 17 of 48 141. Defendant admits the allegations contained in Paragraph 141 of Plaintiff’s Complaint.
142. Defendant admits that the original message stated as follows:
Defendant further admits that the screenshot of the Ferguson Facebook Post that was sent stated as follows:
18 Case 3:16-cv-00295-FDW-DCK Document 6 Filed 07/05/16 Page 18 of 48 Both of the above are documents in writing that speak for themselves. To the extent the allegations contained in Paragraph 142 of Plaintiff’s Complaint contradict those writings, the allegations are denied.
143. Defendant admits that the August 26, 2014 email is a document in writing that speaks for itself. To the extent the allegations contained in Paragraph 143 of Plaintiff’s Complaint contradict that writing, the allegations are denied.
144. Defendant admits that John Barrett was a prominent civil rights activist and attorney who died in May 28, 2012. Defendant further admits that May 28, 2012 is more than two years prior to August 26, 2014. Except as admitted, Defendant denies the allegations contained in Paragraph 144 of Plaintiff’s Complaint for lack of sufficient knowledge or information to form a belief as to the truth or falsity of the matters contained therein.
145. Defendant admits that there is a John Barnett who is a civil rights and community activist. Except as admitted, Defendant denies the allegations contained in Paragraph 145 of Plaintiff’s Complaint for lack of sufficient knowledge or information to form a belief as to the truth or falsity of the matters contained therein.
146. Defendant admits that on August 27, 2014 at 8:33 a.m. a City representative received another complaint from Linda Havery about a second post that Plaintiff made on her Facebook page (hereinafter the “Second Facebook Post”). The email from Havery and the post about which she complained appear below and are documents in writing that speak for themselves:
19 Case 3:16-cv-00295-FDW-DCK Document 6 Filed 07/05/16 Page 19 of 48
20 Case 3:16-cv-00295-FDW-DCK Document 6 Filed 07/05/16 Page 20 of 48 To the extent the allegations contained in Paragraph 146 of Plaintiff’s Complaint contradict those writings, the allegations are denied. Except as specifically admitted and denied, Defendant denies the allegations contained in Paragraph 146 of Plaintiff’s Complaint.
147. Defendant denies the allegations contained in Paragraph 147 of Plaintiff’s Complaint for lack of sufficient knowledge or information to form a belief as to the truth or falsity of the matters contained therein.
148. Defendant admits that the Second Facebook Post is a document in writing that speaks for itself. To the extent the allegations contained in Paragraph 148 of Plaintiff’s Complaint contradict that writing, the allegations are denied.
149. Defendant denies the allegations contained in Paragraph 149 of Plaintiff’s Complaint.
150. Defendant denies the allegations contained in Paragraph 150 of Plaintiff’s Complaint.
151. Defendant denies the allegations contained in Paragraph 151 of Plaintiff’s Complaint.
152. Defendant denies the allegations contained in Paragraph 152 of Plaintiff’s Complaint for lack of sufficient knowledge or information to form a belief as to the truth or falsity of the matters contained therein.
153. Defendant denies the allegations contained in Paragraph 153 of Plaintiff’s Complaint.
154. Defendant admits the allegations contained in Paragraph 154 of Plaintiff’s Complaint.
155. Defendant denies the allegations contained in Paragraph 155 of Plaintiff’s Complaint for lack of sufficient knowledge or information to form a belief as to the truth or falsity of the matters contained therein.
156. Defendant admits the allegations contained in Paragraph 156 of Plaintiff’s Complaint upon information and belief.
157. Defendant admits that Havery emailed Chief Hannan and Chief Monroe twice to report a complaint about Plaintiff’s Ferguson Facebook Post and that she communicated with Sherie Pearsall in four emails, two of which related to the Ferguson Facebook post, one of which alerted the City to the Second Facebook Post and a fourth one wherein she thanked Pearsall and stated “I have biracial kids & I don’t want this to effect our community and my kids that are my proud and joy!” Defendant further admits upon information and belief that representatives of the City have not spoken in person or over the telephone with Havery but instead have communicated with her by email which is consistent with the City’s policy to accept anonymous
21 Case 3:16-cv-00295-FDW-DCK Document 6 Filed 07/05/16 Page 21 of 48 complaints via email. Defendant further admits upon information and belief that Van Laningham did not speak in person or over the phone with Havery. Except as admitted, Defendant denies the allegations contained in Paragraph 157 of Plaintiff’s Complaint.
158. Defendant admits that Defendant’s last communication with Havery was on August 27, 2014. Except as admitted, Defendant denies the allegations contained in Paragraph 158 of Plaintiff’s Complaint for lack of sufficient knowledge or information to form a belief as to the truth or falsity of the matters contained therein.
159. Defendant denies the allegations contained in Paragraph 159 of Plaintiff’s Complaint.
160. Defendant denies the allegations contained in Paragraph 160, including sub- paragraphs (a) through (g), of Plaintiff’s Complaint.
161. Defendant admits that representatives of the City asked Havery for copies of the posts about which she was complaining, asked her to call them and told her to feel free to reach out. Except as admitted, Defendant denies the allegations contained in Paragraph 161 of Plaintiff’s Complaint.
162. Defendant denies the allegations contained in Paragraph 162 of Plaintiff’s Complaint.
Specifically Responding to “Termination”
163. Defendant admits that Wilkinson contacted Plaintiff on August 27, 2014 at approximately 10:02 a.m. and told her that she needed to come in to meet with Kristi Kjeldsen (“Kjeldsen”) and other City representatives and told her about the complaints received about her Facebook posts. Defendant further admits that Plaintiff responded “it ain’t happening today” and he then emphasized the seriousness of the matter and she then stated she would need to arrange for childcare before she came to the meeting. Except as admitted, Defendant denies the allegations contained in Paragraph 163 of Plaintiff’s Complaint.
164. Defendant admits the allegations contained in Paragraph 164 of Plaintiff’s Complaint.
165. Defendant admits the allegations contained in Paragraph 165 of Plaintiff’s Complaint.
166. Defendant admits that Deputy Chief Kinniburgh told Plaintiff that her that the goal was to protect her, the CFD and the City. Defendant further admits that Defendant did not intend to “make an example” of Plaintiff but to respond as warranted to her actions. Defendant further admits that Plaintiff was told that people were going “bonkers” over her Facebook posts. Except as admitted, Defendant denies the allegations contained in Paragraph 166 of Plaintiff’s Complaint.
22 Case 3:16-cv-00295-FDW-DCK Document 6 Filed 07/05/16 Page 22 of 48 167. Defendant admits the allegations contained in Paragraph 167 of Plaintiff’s Complaint upon information and belief.
168. Defendant admits that Kjeldsen acknowledged that Plaintiff’s Facebook post was private (i.e. only the people she was “friends” with could see it). Except as admitted, Defendant denies the allegations contained in Paragraph 168 of Plaintiff’s Complaint.
169. Defendant admits the allegations contained in Paragraph 169 of Plaintiff’s Complaint.
170. Defendant admits the allegations contained in Paragraph 170 of Plaintiff’s Complaint.
171. Defendant admits the allegations contained in Paragraph 171 of Plaintiff’s Complaint.
172. Defendant admits that Kjeldsen and Deputy Chief Kinniburgh may have said Eschert was entitled to her opinions and she was asking the same question that a large number of other Americans were asking. Defendant further admits that in the meeting City representatives tried to convey to Plaintiff that even though she may hold certain opinions she needed to be careful about what she posted given her status as a first responder and specifically as a Fire Investigator. Except as admitted, Defendant denies the allegations contained in Paragraph 172 of Plaintiff’s Complaint.
173. Defendant admits that Plaintiff appeared more concerned with how the Facebook posts had gotten out as opposed to the fact that their contents was inappropriate and had offended someone. Except as admitted, Defendant denies the allegations contained in Paragraph 173 of Plaintiff’s Complaint.
174. Defendant admits the allegations contained in Paragraph 174 upon information and belief.
175. Defendant admits the allegations contained in Paragraph 175 upon information and belief.
176. Defendant admits the allegations contained in Paragraph 176 of Plaintiff’s Complaint.
177. Defendant admits that the August 27, 2014 meeting was an opportunity for Plaintiff to respond to the complaints against her and an attempt to contain the situation. Defendant further admits that no decision had been made at that point in time as to the discipline Plaintiff would receive. Except as admitted, Defendant denies the allegations contained in Paragraph 177 of Plaintiff’s Complaint.
178. Defendant admits that Plaintiff was given copies of her own posts that were sent to the City by a concerned citizen but not copies of the email complaints. Defendant further
23 Case 3:16-cv-00295-FDW-DCK Document 6 Filed 07/05/16 Page 23 of 48 admits that Plaintiff requested that copies of the emails be forwarded to her. As for Plaintiff’s motivation for the request, Defendant denies the allegations for lack of sufficient knowledge or information to form a belief as to the truth or falsity of the matters contained therein. Except as specifically admitted and denied, Defendant denies the allegations contained in Paragraph 178 of Plaintiff’s Complaint.
179. Defendant admits that Plaintiff was instructed to prepare a statement explaining her Facebook posts for her records and that she was advised not to email the document using City of Charlotte email addresses as Kjeldsen and Wilkinson did not want there to be further public exposure for Plaintiff over these posts and to insure her privacy the statement would be placed in her personnel file where it would remain protected. Except as admitted, Defendant denies the allegations contained in Paragraph 179 of Plaintiff’s Complaint.
180. Defendant admits that Plaintiff was instructed to prepare a statement explaining her Facebook posts for her records and that she was advised not to email the document using City of Charlotte email addresses as Kjeldsen and Wilkinson did not want there to be further public exposure for Plaintiff over these posts and to insure her privacy the statement would be placed in her personnel file where it would remain protected. Except as admitted, Defendant denies the allegations contained in Paragraph 180 of Plaintiff’s Complaint.
181. Defendant admits the allegations contained in Paragraph 181 of Plaintiff’s Complaint.
182. Defendant admits that Plaintiff did not express any sort of discomfort with the request that was made and further admits that it would be surprising had Plaintiff felt such discomfort given that she had previously been communicating with Fallon about her alleged concerns about the 1517 North Graham Building using her personal email address. Defendant further admits that it is not a violation of the law to use a non-city email address to communicate about city business as that email is still subject to the public records laws. Except as admitted, Defendant denies the allegations contained in Paragraph 182 of Plaintiff’s Complaint for lack of sufficient knowledge or information to form a belief as to the truth or falsity of the matters contained therein.
183. Defendant admits that at some point in time Plaintiff requested that copies of the Linda Havery emails and attachments be forwarded to her and further admits that the emails were forwarded to her and to her attorney once she engaged counsel. Except as admitted, Defendant denies the allegations contained in Paragraph 183 of Plaintiff’s Complaint for lack of sufficient knowledge or information to form a belief as to the truth or falsity of the matters contained therein.
184. Defendant denies the allegations contained in Paragraph 184 of Plaintiff’s Complaint for lack of sufficient knowledge or information to form a belief as to the truth or falsity of the matters contained therein.
185. Defendant admits that at some point in time Fallon contacted City Attorney Bob Hagemann (“Hagemann”) and disclosed her connection to Plaintiff and her desire that Plaintiff
24 Case 3:16-cv-00295-FDW-DCK Document 6 Filed 07/05/16 Page 24 of 48 not be disciplined for her actions. Defendant further admits that Hagemann shared Fallon’s position with Mayor Dan Clodfelter (“Clodfelter”) as well as City Manager Ron Carlee (“Carlee”). Defendant further admits that Carlee texted Chief Hannan to convey Fallon’s desire to utilize her position to shield Plaintiff from being disciplined for her actions. Except as admitted, Defendant denies the allegations contained in Paragraph 185 of Plaintiff’s Complaint.
186. Defendant admits the allegations contained in Paragraph 186 of Plaintiff’s Complaint.
187. Defendant admits that Plaintiff used her own personal email to communicate about City business in the past and thus it seems unusual she would believe such behavior was a violation of public records law. Except as admitted, Defendant denies the allegations contained in Paragraph 187 of Plaintiff’s Complaint for lack of sufficient knowledge or information to form a belief as to the truth or falsity of the matters contained therein.
188. Defendant admits that Williams was not at the August 27, 2014 meeting and further admits that Eschert copied Williams on her August 29, 2014 email. Except as admitted, Defendant denies the allegations contained in Paragraph 188 of Plaintiff’s Complaint.
189. Defendant denies the allegations contained in Paragraph 189 of Plaintiff’s Complaint.
190. Defendant admits that Kjeldsen provided Plaintiff with copies of the documents she requested on September 2, 2014 after Plaintiff finally signed the documents necessary for the City to release such documents. Except as admitted, Defendant denies the allegations contained in Paragraph 190 of Plaintiff’s Complaint.
191. Defendant admits that Wilkinson emailed Kjeldsen on September 2, 2014, and that Deputy Chief Kinniburgh was copied on the email. Defendant further admits that the September 2, 2014 email is a document in writing that speaks for itself. To the extent the allegations contained in Paragraph 191 of Plaintiff’s Complaint contradict that writing, the allegations are denied. Except as specifically admitted and denied, Defendant denies the allegations contained in Paragraph 191 of Plaintiff’s Complaint.
192. Defendant admits that Plaintiff emailed Kjeldsen twice on September 3, 2014. Defendant further admits that those emails are documents in writing that speak for themselves. To the extent the allegations contained in Paragraph 192 of Plaintiff’s Complaint contradict those writings, the allegations are denied. Except as specifically admitted and denied, Defendant denies the allegations contained in Paragraph 192 of Plaintiff’s Complaint.
193. Defendant admits the allegations contained in Paragraph 193 of Plaintiff’s Complaint.
194. Defendant admits that Kjeldsen emailed Deputy Chief Granger on September 4, 2014. Defendant further admits that the September 4, 2014 email is a document in writing that speaks for itself. To the extent the allegations contained in Paragraph 194 of Plaintiff’s
25 Case 3:16-cv-00295-FDW-DCK Document 6 Filed 07/05/16 Page 25 of 48 Complaint contradict that writing, the allegations are denied. Except as specifically admitted and denied, Defendant denies the allegations contained in Paragraph 194 of Plaintiff’s Complaint.
195. Defendant admits the allegations contained in Paragraph 195 of Plaintiff’s Complaint.
196. Defendant admits that there was a meeting on September 16, 2014 to discuss the impact of Plaintiff’s posts on the CFD and the City. Defendant further admits that the meeting was attended by Chief Hannan, Deputy Chief Key, Kjeldsen, Deputy Chief Kerr Putney, Deputy City Attorney Hope Root, Human Resources Director Cheryl Brown, Deputy Human Resources Director Sheila Simpson (“Simpson”) and Assistant City Manager Ann Wall (“Wall”). Except as admitted, Defendant denies the allegations contained in Paragraph 196 of Plaintiff’s Complaint.
197. Defendant admits the allegations contained in Paragraph 197 of Plaintiff’s Complaint.
198. Defendant admits that City representatives contacted Council Member Michael Barnes (“Barnes”) and Kojo Nantambu, then president of the Charlotte NAACP, to seek their input on the Facebook posts from the standpoint of African-Americans in the Charlotte community. Defendant further admits that Plaintiff’s identity was not disclosed to those individuals. Except as admitted, Defendant denies the allegations contained in Paragraph 198 of Plaintiffs’ Complaint.
199. Defendant denies the allegations contained in Paragraph 199 of Plaintiff’s Complaint.
200. Defendant admits that a meeting occurred on September 23, 2014 and Paragraph 200 contains a partial list of attendees at that meeting. Except as admitted, Defendant denies the allegations contained in Paragraph 200 of Plaintiff’s Complaint.
201. Defendant denies the allegations contained in Paragraph 201 of Plaintiff’s Complaint.
202. Defendant denies the allegations contained in Paragraph 202 of Plaintiff’s Complaint.
203. Defendant admits that Deputy Chief Kinniburgh provided Plaintiff with her Recommendation of Termination and Notice of Pre-Termination Hearing on September 24, 2014. Except as admitted, Defendant denies the allegations contained in Paragraph 203 of Plaintiff’s Complaint.
204. Defendant admits that on September 24, 2014, Eschert was given a Notice of Pre- Termination Hearing and the Recommendation for Termination, that the pre-termination hearing was set for 9:00 on September 25, 2014, and that Kjeldsen, Wilkinson, Williams, and Deputy Chief Kinniburgh were all present for that meeting. Except as admitted, Defendant denies the allegations contained in Paragraph 204 of Plaintiff’s Complaint.
26 Case 3:16-cv-00295-FDW-DCK Document 6 Filed 07/05/16 Page 26 of 48 205. Defendant admits the allegations contained in Paragraph 205 of Plaintiff’s Complaint.
206. Defendant admits the allegations contained in Paragraph 206 of Plaintiff’s Complaint.
207. Defendant admits that the September 24, 2014 Substantiated Misconduct Form is a document in writing that speaks for itself. To the extent the allegations contained in Paragraph 207 of Plaintiff’s Complaint contradict that writing, the allegations are denied.
208. Defendant denies the allegations contained in Paragraph 208 of Plaintiff’s Complaint.
209. Defendant denies the allegations contained in Paragraph 209 of Plaintiff’s Complaint for lack of sufficient knowledge or information to form a belief as to the truth or falsity of the matters contained therein.
210. Defendant admits the allegations contained in Paragraph 210 of Plaintiff’s Complaint.
211. Defendant denies the allegations contained in Paragraph 211 of Plaintiff’s Complaint.
212. Defendant admits that a pre-termination hearing was conducted on September 25 2014 and that Deputy Chief Granger, Kjeldsen and Simpson attended the hearing, and that Deputy Chief Granger presided over the hearing. Except as admitted, Defendant denies the allegations contained in Paragraph 212 of Plaintiff’s Complaint.
213. Defendant admits that Deputy Chief Granger and Chief Hannan previously lived together and that Deputy Chief Granger assists Chief Hannan with managing the CFD facilities and properties, including but not limited to the buildings that Plaintiff complained about. Except as admitted, Defendant denies the allegations contained in Paragraph 213 of Plaintiff’s Complaint.
214. Defendant denies the allegations contained in Paragraph 214 of Plaintiff’s Complaint.
215. Defendant denies the allegations contained in Paragraph 215 of Plaintiff’s Complaint.
216. Defendant admits the allegations contained in Paragraph 216 of Plaintiff’s Complaint.
217. Defendant admits that Deputy Chief Kinniburgh cited Plaintiff for termination and Deputy Chief Granger then issued a written determination upholding Plaintiff’s termination. Defendant further admits that Fire Department General Order 208.01 is a document in writing
27 Case 3:16-cv-00295-FDW-DCK Document 6 Filed 07/05/16 Page 27 of 48 that speaks for itself. To the extent the allegations contained in Paragraph 217 of Plaintiff’s Complaint contradict that writing, the allegations are denied. Except as specifically admitted and denied, Defendant denies the allegations contained in Paragraph 217 of Plaintiff’s Complaint.
218. Defendant admits that the September 28, 2014 letter Deputy Chief Granger signed on behalf of the CFD is a document in writing that speaks for itself. To the extent the allegations contained in Paragraph 218 of Plaintiff’s Complaint contradict that writing, the allegations are denied. Except as specifically admitted and denied, Defendant denies the allegations contained in Paragraph 218 of Plaintiff’s Complaint.
Specifically Responding to “Policy Violations and Procedural Inconsistencies”
219. Defendant denies the allegations contained in Paragraph 219 of Plaintiff’s Complaint.
220. Defendant denies the allegations contained in Paragraph 220 of Plaintiff’s Complaint.
221. Defendant admits that Plaintiff was allowed to continue working while Defendant properly investigated the complaint leveled against Plaintiff. Defendant further admits that one of the reasons Plaintiff was allowed to keep working was because Fallon improperly inserted herself into Plaintiff’s personnel matter and instructed Carlee to stop all disciplinary proceedings against Plaintiff. Except as admitted, Defendant denies the allegations contained in Paragraph 221 of Plaintiff’s Complaint.
222. Defendant denies the allegations contained in Paragraph 222 of Plaintiff’s Complaint.
223. Defendant admits that the NCDOL Report is a document in writing that speaks for itself. To the extent the allegations contained in Paragraph 223 of Plaintiff’s Complaint contradict that writing, the allegations are denied. Except as specifically admitted and denied, Defendant denies the allegations contained in Paragraph 223 of Plaintiff’s Complaint.
224. Defendant denies the allegations contained in Paragraph 224 of Plaintiff’s Complaint for lack of sufficient knowledge or information to form a belief as to the truth or falsity of the matters contained therein.
225. Defendant denies the allegations contained in Paragraph 225 of Plaintiff’s Complaint.
226. Defendant denies the allegations contained in Paragraph 226 of Plaintiff’s Complaint.
227. Defendant denies the allegations contained in Paragraph 227 of Plaintiff’s Complaint.
28 Case 3:16-cv-00295-FDW-DCK Document 6 Filed 07/05/16 Page 28 of 48 228. Defendant denies the allegations contained in Paragraph 228 of Plaintiff’s Complaint.
229. Defendant denies the allegations contained in Paragraph 229 of Plaintiff’s Complaint.
230. Defendant denies the allegations contained in Paragraph 230 of Plaintiff’s Complaint.
231. Defendant denies the allegations contained in Paragraph 231 of Plaintiff’s Complaint.
232. Defendant denies the allegations contained in Paragraph 232 of Plaintiff’s Complaint.
233. Defendant denies the allegations contained in Paragraph 233 of Plaintiff’s Complaint.
Specifically Responding to “Public Records Requests and Post- Termination Grievance Process”
234. Defendant denies the allegations contained in Paragraph 234 of Plaintiff’s Complaint.
235. Defendant denies the allegations contained in Paragraph 235 of Plaintiff’s Complaint.
236. Defendant admits the allegations contained in Paragraph 236 of Plaintiff’s Complaint.
237. Defendant admits the allegations contained in Paragraph 237 of Plaintiff’s Complaint.
238. Defendant admits the allegations contained in Paragraph 238 of Plaintiff’s Complaint.
239. Defendant admits that the October 17, 2014 letter Chief Hannan signed on behalf of the CFD is a document in writing that speaks for itself. To the extent the allegations contained in Paragraph 239 of Plaintiff’s Complaint contradict that writing, the allegations are denied. Except as specifically admitted and denied, Defendant denies the allegations contained in Paragraph 239 of Plaintiff’s Complaint.
240. Defendant admits that the October 17, 2014 letter Chief Hannan signed on behalf of the CFD is a document in writing that speaks for itself. To the extent the allegations contained in Paragraph 240 of Plaintiff’s Complaint contradict that writing, the allegations are denied.
29 Case 3:16-cv-00295-FDW-DCK Document 6 Filed 07/05/16 Page 29 of 48 Except as specifically admitted and denied, Defendant denies the allegations contained in Paragraph 240 of Plaintiff’s Complaint.
241. Defendant admits that the October 17, 2014 letter Chief Hannan signed on behalf of the CFD is a document in writing that speaks for itself. To the extent the allegations contained in Paragraph 241 of Plaintiff’s Complaint contradict that writing, the allegations are denied. Except as specifically admitted and denied, Defendant denies the allegations contained in Paragraph 241 of Plaintiff’s Complaint.
242. Defendant denies the allegations contained in Paragraph 242 of Plaintiff’s Complaint.
243. Defendant denies the allegations contained in Paragraph 243 of Plaintiff’s Complaint.
244. Defendant denies the allegations contained in Paragraph 244 of Plaintiff’s Complaint.
245. Defendant admits that sub-paragraphs (a) through (d) of Paragraph 245 of Plaintiff’s Complaint represent reasons that Plaintiff’s termination was justified. Defendant further admits that both firefighters and fire investigators are required to comply with applicable CFD policies and procedures, including but not limited to CFD Policy 208.08 and 208.01 Section III A 5 and 15. Defendant further admits that there are approximately 1,100 full time CFD employees and the CFD is unable to monitor 1,100 social media accounts and thus Defendant denies the allegations contained in Paragraph 245 of Plaintiff’s Complaint that claim other CFD employees shared the same Law Enforcement Today post for lack of sufficient knowledge or information to form a belief as to the truth or falsity of the matters contained therein but can admit that Defendant did not receive any other citizen complaints about other employees who posted the Law Enforcement Today post. Except as specifically admitted and denied, Defendant denies the allegations contained in Paragraph 245 of Plaintiff’s Complaint.
246. Defendant denies the allegations contained in Paragraph 246 of Plaintiff’s Complaint.
247. Defendant admits the allegations contained in Paragraph 247 of Plaintiff’s Complaint.
248. Defendant denies the allegations contained in Paragraph 248 of Plaintiff’s Complaint.
249. Defendant admits that Wall’s November 18, 2014 letter sent on behalf of Defendant is a document in writing that speaks for itself. To the extent the allegations contained in Paragraph 249 of Plaintiff’s Complaint contradict that writing, the allegations are denied. Except as specifically admitted and denied, Defendant denies the allegations contained in Paragraph 249 of Plaintiff’s Complaint.
30 Case 3:16-cv-00295-FDW-DCK Document 6 Filed 07/05/16 Page 30 of 48 Specifically Responding to “Gender Discrimination”
250. Defendant admits the allegations contained in Paragraph 250 of Plaintiff’s Complaint.
251. Defendant admits the allegations contained in Paragraph 251 of Plaintiff’s Complaint.
252. Defendant admits the allegations contained in Paragraph 252 of Plaintiff’s Complaint.
253. Defendant denies the allegations contained in Paragraph 253 of Plaintiff’s Complaint.
254. Defendant admits that Kjeldsen does not have a specific recollection of everything that she said during the August 27, 2014 meeting with Eschert, but her normal practice would have been to tell Eschert that the meeting was for informational purposes only. Except as admitted, the allegations contained in Paragraph 254 of Plaintiff’s Complaint are denied.
255. Defendant admits that Deputy Chief Kinniburgh on behalf of Defendant issued a Recommendation of Termination and Notice of Pre-Termination Hearing to Plaintiff on September 24, 2014. Except as admitted, Defendant denies the allegations contained in Paragraph 255 of Plaintiff’s Complaint.
256. Defendant admits that Deputy Chief Granger on behalf of Defendant issued a letter to Plaintiff upholding the decision to terminate her employment on September 26, 2014. Except as admitted, Defendant denies the allegations contained in Paragraph 256 of Plaintiff’s Complaint.
257. Defendant admits that Chief Hannan on behalf of Defendant issued a letter to Plaintiff upholding the decision to terminate her employment on October 17, 2014. Except as admitted, Defendant denies the allegations contained in Paragraph 257 of Plaintiff’s Complaint.
Specifically Responding to “Disparate Treatment- Other Facebook Posts”
258. Defendant admits that there are approximately 1,100 full time CFD employees and the CFD is unable to monitor 1,100 social media accounts and thus Defendant denies the allegations contained in Paragraph 258 of Plaintiff’s Complaint for lack of sufficient knowledge or information to form a belief as to the truth or falsity of the matters contained therein. Defendant further admits that if a citizen complains about other CFD employees’ posts as they did regarding Plaintiff’s posts and the posts are determined to violate CFD policies and procedures, then the postings would not be “without consequence.” Except as specifically admitted and denied, Defendant denies the allegations contained in Paragraph 258 of Plaintiff’s Complaint.
31 Case 3:16-cv-00295-FDW-DCK Document 6 Filed 07/05/16 Page 31 of 48 259. Defendant admits the allegations contained in Paragraph 259 of Plaintiff’s Complaint.
260. Defendant admits that on February 20, 2015, Deputy Fire Chief Jeff Dulin (“Deputy Chief Dulin”) shared a post on his Facebook page regarding former Olympian, Bruce Jenner. A copy of the image he posted is set forth below:
To the extent the allegations contained in Paragraph 260 of Plaintiff’s Complaint contradict this post, the allegations are denied.
261. Defendant admits that Deputy Chief Dulin posted the image set forth in response to Paragraph 260. To the extent the allegations contained in Paragraph 261 of Plaintiff’s Complaint contradict that post, the allegations are denied.
262. Defendant admits the allegations contained in Paragraph 262 upon information and belief.
263. Defendant admits that members of the Charlotte community reported the post to CFD and the media covered the story of Deputy Chief Dulin’s Facebook post. Except as admitted, Defendant denies the allegations contained in Paragraph 263 of Plaintiff’s Complaint.
264. Defendant admits that in February 2015 the results of an audit of 40 City employees showed that Deputy Chief Dulin had made an error in reporting his travel expenses in the total amount of $2,750 from approximately 36 trips he took during the three years covered by the audit. Defendant further admits that Deputy Chief Dulin paid the money back when notified of his error. Except as admitted, Defendant denies the allegations contained in Paragraph 264 of Plaintiff’s Complaint.
265. Defendant admits that the second largest expense report error discovered in the audit was in the amount of approximately $540. $2,750 is more than five times $540. Except as admitted, Defendant denies the allegations contained in Paragraph 265 of Plaintiff’s Complaint.
32 Case 3:16-cv-00295-FDW-DCK Document 6 Filed 07/05/16 Page 32 of 48 266. Defendant admits that after members of the Charlotte community reported the post to CFD, Deputy Chief Dulin was placed on administrative leave on February 24, 2015 and, prior to the completion of the open investigation, Deputy Chief Dulin opted to retire which implies that he thought that he was going to be treated in exactly the same manner as Plaintiff or he would not have voluntarily retired. Defendant further admits that Deputy Chief Dulin issued an apology for his actions. Except as admitted, Defendant denies the allegations contained in Paragraph 266 of Plaintiff’s Complaint.
267. Defendant denies the allegations contained in Paragraph 267 for lack of sufficient knowledge or information to form a belief as to the truth or falsity of the matters contained therein.
268. Defendant denies the allegations contained in Paragraph 268 for lack of sufficient knowledge or information to form a belief as to the truth or falsity of the matters contained therein.
269. Defendant denies the allegations contained in Paragraph 269, including sub- paragraphs (a) through (h), for lack of sufficient knowledge or information to form a belief as to the truth or falsity of the matters contained therein.
270. Defendant denies the allegations contained in Paragraph 270 for lack of sufficient knowledge or information to form a belief as to the truth or falsity of the matters contained therein.
271. Defendant denies the allegations contained in Paragraph 271 of Plaintiff’s Complaint.
272. Defendant admits that the NCDOL report is a document in writing that speaks for itself. To the extent the allegations contained in Paragraph 272 of Plaintiff’s Complaint contradict that writing, the allegations are denied.
273. Defendant denies the allegations contained in Paragraph 273 of Plaintiff’s Complaint.
274. Defendant admits that [email protected] sent at least one email to the City Manager and City Council Members regarding other City employees with allegedly “offensive” or “derogatory” social media posts and that those posts are being investigated and those investigations have not been concluded. Except as admitted, Defendant denies the allegations contained in Paragraph 274 of Plaintiff’s Complaint.
Specifically Responding to “Credibility Issues and Retaliation Against Eschert’s Witnesses and Supporters”
275. Defendant admits that Fire Investigators, firefighters and first responders may be called upon to testify in arson cases. Defendant further admits that Fire Investigators are called to give not only factual testimony but also opinions based on their education, experience and
33 Case 3:16-cv-00295-FDW-DCK Document 6 Filed 07/05/16 Page 33 of 48 training and thus the credibility of Fire Investigators is a central issue in the cases wherein they are called upon to testify as expert witnesses. Except as admitted, Defendant denies the allegations contained in Paragraph 275 of Plaintiff’s Complaint.
276. Defendant denies the allegations contained in Paragraph 276 of Plaintiff’s Complaint.
277. Defendant admits that the Van Laningham Report is a document in writing that speaks for itself. To the extent the allegations contained in Paragraph 277 of Plaintiff’s Complaint contradict that writing, the allegations are denied.
278. Defendant denies the allegations contained in Paragraph 278 of Plaintiff’s Complaint.
279. Defendant denies the allegations contained in Paragraph 279 of Plaintiff’s Complaint.
280. Defendant admits that the transcript from the March 4, 2015 Civil Service Board hearing is a document in writing that speaks for itself. To the extent the allegations contained in Paragraph 280 of Plaintiff’s Complaint contradict that writing, the allegations are denied. Except as specifically admitted and denied, Defendant denies the allegations contained in Paragraph 280 of Plaintiff’s Complaint.
281. Defendant admits that the transcript from the March 4, 2015 Civil Service Board hearing is a document in writing that speaks for itself. To the extent the allegations contained in Paragraph 281 of Plaintiff’s Complaint contradict that writing, the allegations are denied. Except as specifically admitted and denied, Defendant denies the allegations contained in Paragraph 281 of Plaintiff’s Complaint.
282. Defendant denies the allegations contained in Paragraph 282 of Plaintiff’s Complaint.
283. Defendant admits that Fire Department General Order 208.03 III(B)(1)(c) is a document in writing that speaks for itself and denies Paragraph 283 to the extent the allegations contained in Paragraph 283 of Plaintiff’s Complaint contradict that writing. Defendant further admits that Fire Department General Order 208.03 III(B)(1)(c) does not apply to Plaintiff as she is not a civil service employee. Except as specifically admitted and denied, Defendant denies the allegations contained in Paragraph 283 of Plaintiff’s Complaint.
284. Defendant denies the allegations contained in Paragraph 284 of Plaintiff’s Complaint.
285. Defendant denies the allegations contained in Paragraph 285 of Plaintiff’s Complaint.
34 Case 3:16-cv-00295-FDW-DCK Document 6 Filed 07/05/16 Page 34 of 48 286. Defendant denies the allegations contained in Paragraph 286 of Plaintiff’s Complaint.
287. Defendant admits that Chief Hannan provided an internal memo labeled as “confidential” to the media because he mistakenly believed the memo had previously been made public through the actions of others. Defendant further admits that Chief Hannan admitted his error and was disciplined for it. Except as admitted, Defendant denies the allegations contained in Paragraph 287 of Plaintiff’s Complaint.
288. Defendant admits that Marty Puckett (“Puckett”) is Vice President of the Charlotte Firefighters Association and that Carlee told Puckett that he could not be a volunteer intern for Fallon and that Carlee reprimanded Puckett for serving in that capacity. Defendant further admits that Carlee banned Puckett from the 15th floor of the Charlotte City Government Center. Except as admitted, Defendant denies the allegations contained in Paragraph 288 of Plaintiff’s Complaint.
289. Defendant admits that on March 20, 2016, Chief Hannan responded to local television reporter(s) indicating that he did not have any information about the investigation that he could share with them. Defendant further admits that at the time he responded to that question he had already disclosed his error in providing a copy of the memorandum to Carlee. Except as admitted, Defendant denies the allegations contained in Paragraph 289 of Plaintiff’s Complaint.
290. Defendant admits that Carlee placed Chief Hannan on three-month’s probation and placed a reprimand in his file. Defendant further admits that Chief Hannan mistakenly understood that all topics discussed at the Friday, March 4, 2016 meeting with the Assistant City Manager and members of the City Attorney’s office had previously been made public through the actions of other and he provided that explanation when asked. Except as admitted, Defendant denies the allegations contained in Paragraph 290 of Plaintiff’s Complaint.
291. Defendant admits that North Carolina has laws regarding the release of employee personnel files and further that CFD has General Orders (signed by Chief Hannan) that are documents in writing that speak for themselves. To the extent the allegations contained in Paragraph 291 of Plaintiff’s Complaint contradict those writings, the allegations are denied. Except as specifically admitted and denied, Defendant denies the allegations contained in Paragraph 291 of Plaintiff’s Complaint.
292. Defendant denies the allegations contained in Paragraph 292 of Plaintiff’s Complaint.
Specifically Responding to “Disparate Treatment- Use of the Word ‘Thug’”
293. Defendant admits that the Van Laningham Report is a document in writing that speaks for itself. To the extent the allegations contained in Paragraph 293 of Plaintiff’s Complaint contradict that writing, the allegations are denied.
35 Case 3:16-cv-00295-FDW-DCK Document 6 Filed 07/05/16 Page 35 of 48 294. Defendant admits that the media reported that Barnes used the word “thug” in a 2006 council meeting to describe a criminal. Defendant further admits that Barnes told the media that he felt his use of the word was acceptable because he was describing someone who would be a criminal; however, he believed Plaintiff’s Ferguson Facebook Post was referring to Michael Brown Jr., who was killed by police in Ferguson, and he said he disapproved of that use. Except as admitted, Defendant denies the allegations contained in Paragraph 294 of Plaintiff’s Complaint for lack of sufficient knowledge or information to form a belief as to the truth or falsity of the matters contained therein.
295. Defendant admits that the word “thug” can have numerous meanings, including but not limited to the meanings set forth in subparagraphs (a) through (e) of Paragraph 295. Defendant further admits that courts have recognized the potential racist connotations of the word “thug.” See e.g. Lloyd v. Holder, No. 11 CIV. 3154 AT, 2013 WL 6667531, at *9 (S.D.N.Y. Dec. 17, 2013) (“The Court recognizes that certain facially non-discriminatory terms can invoke racist concepts that are already planted in the public consciousness—words like ‘welfare queen,’ ‘terrorist,’ ‘thug,’ ‘illegal alien.’”. Defendant further admits that the Van Laningham report describes Plaintiff’s use of the word “thug” as “racially-charged.” Except as admitted, Defendant denies the allegations contained in Paragraph 295 of Plaintiff’s Complaint.
296. Defendant denies the allegations contained in Paragraph 296 of Plaintiff’s Complaint for lack of sufficient knowledge or information to form a belief as to the truth or falsity of the matters contained therein.
297. Defendant admits upon information and belief that John Barnett has an organization that he refers to as True Healing Under God and that the acronym is T.H.U.G. Except as admitted, Defendant denies the allegations contained in Paragraph 297 of Plaintiff’s Complaint for lack of sufficient knowledge or information to form a belief as to the truth or falsity of the matters contained therein.
298. Defendant admits the allegations contained in Paragraph 298 of Plaintiff’s Complaint.
Specifically Responding to “Van Laningham Report and Management Partners Report”
299. Defendant admits the allegations contained in Paragraph 299 of Plaintiff’s Complaint.
300. Defendant admits the allegations contained in Paragraph 300 of Plaintiff’s Complaint.
301. Defendant admits that the Van Laningham Report ultimately concluded that “the better evidence leads to the opposite conclusion [that Eschert was not the subject of a retaliatory termination]” and “did not find any direct evidence that Crystal Eschert’s termination was retaliatory and unrelated to her Facebook posts.” Defendant further admits that the Van Laningham Report is a document in writing that speaks for itself. To the extent the allegations
36 Case 3:16-cv-00295-FDW-DCK Document 6 Filed 07/05/16 Page 36 of 48 contained in Paragraph 301 of Plaintiff’s Complaint contradict that writing, the allegations are denied. Except as specifically admitted and denied, Defendant denies the allegations contained in Paragraph 301 of Plaintiff’s Complaint.
302. Defendant admits that the Van Laningham Report ultimately concluded that “the better evidence leads to the opposite conclusion [that Eschert was not the subject of a retaliatory termination]” and “did not find any direct evidence that Crystal Eschert’s termination was retaliatory and unrelated to her Facebook posts.” Defendant further admits that the Van Laningham Report is a document in writing that speaks for itself. To the extent the allegations contained in Paragraph 302 of Plaintiff’s Complaint contradict that writing, the allegations are denied. Except as specifically admitted and denied, Defendant denies the allegations contained in Paragraph 302 of Plaintiff’s Complaint.
303. Defendant admits the allegations contained in Paragraph 303 of Plaintiff’s Complaint.
304. Defendant admits that the Management Partners Report states that the investigators were “impressed by the high level of service provided by the department and the consistently good public satisfaction with the quality of service” and pointed out that the report “focuse[d] on the opportunities, rather than the accomplishments.” Defendant further admits that the Management Partners Report is a document in writing that speaks for itself. To the extent the allegations contained in Paragraph 304 of Plaintiff’s Complaint contradict that writing, the allegations are denied. Except as specifically admitted and denied, Defendant denies the allegations contained in Paragraph 304 of Plaintiff’s Complaint.
Specifically Responding to “NCDOL Investigation”
305. Defendant admits that the NCDOL Report is a document in writing that speaks for itself. To the extent the allegations contained in Paragraph 305 of Plaintiff’s Complaint contradict that writing, the allegations are denied. Except as specifically admitted and denied, Defendant denies the allegations contained in Paragraph 305 of Plaintiff’s Complaint.
306. Defendant admits that the NCDOL Report is a document in writing that speaks for itself. To the extent the allegations contained in Paragraph 306 of Plaintiff’s Complaint contradict that writing, the allegations are denied. Except as specifically admitted and denied, Defendant denies the allegations contained in Paragraph 306 of Plaintiff’s Complaint.
307. Defendant admits that the NCDOL Report is a document in writing that speaks for itself. To the extent the allegations contained in Paragraph 307 of Plaintiff’s Complaint contradict that writing, the allegations are denied. Except as specifically admitted and denied, Defendant denies the allegations contained in Paragraph 307 of Plaintiff’s Complaint.
308. Defendant denies the allegations contained in Paragraph 308 of Plaintiff’s Complaint.
37 Case 3:16-cv-00295-FDW-DCK Document 6 Filed 07/05/16 Page 37 of 48 309. Defendant denies the allegations contained in Paragraph 309 of Plaintiff’s Complaint.
Specifically Responding to “Count I (First Amendment Violation- The Complaints of Risks to Health and Safety and of Financial Mismanagement)
310. Defendant hereby incorporates by reference as if fully set forth herein Defendant’s responses to Paragraphs 1 through 309 of Plaintiff’s Complaint.
311. Defendant admits that government employees generally have a right to comment on matters of public concern but that right must be balanced with the employer’s interest in promoting the efficiency of the public services it performs through its employees. Except as admitted, Defendant denies the allegations contained in Paragraph 311 of Plaintiff’s Complaint.
312. Defendant admits upon information and belief that Plaintiff complained to Ray Eschert and Ray Eschert then involved Fallon. Except as admitted, Defendant denies the allegations contained in Paragraph 312 of Plaintiff’s Complaint.
313. Defendant denies the allegations contained in Paragraph 313 of Plaintiff’s Complaint.
314. Defendant admits that Plaintiff has rights under the First Amendment not to be punished or retaliated against for speaking out as a citizen on matters of public interest and concern or engaging in protective expressive activity. However, Defendant further admits that Plaintiff’s First Amendment rights are not without limits. Except as admitted, Defendant denies the allegations contained in Paragraph 314 of Plaintiff’s Complaint.
315. Defendant denies the allegations contained in Paragraph 315 of Plaintiff’s Complaint.
316. Defendant denies the allegations contained in Paragraph 316 of Plaintiff’s Complaint.
317. Defendant denies the allegations contained in Paragraph 317 of Plaintiff’s Complaint.
318. Defendant denies the allegations contained in Paragraph 318 of Plaintiff’s Complaint.
319. Defendant admits that mismanagement of funds, wasting money, or endangering the lives and health of any person would not be a legitimate interest of the CFD. Defendant specifically denies that CFD secretly wasted or mismanaged funds or endangered the lives and health of the Fire Investigators and other Fire Department employees. Except as specifically admitted and denied, Defendant denies the allegations contained in Paragraph 319 of Plaintiff’s Complaint.
38 Case 3:16-cv-00295-FDW-DCK Document 6 Filed 07/05/16 Page 38 of 48 320. Defendant denies the allegations contained in Paragraph 320 of Plaintiff’s Complaint.
321. Defendant denies the allegations contained in Paragraph 321 of Plaintiff’s Complaint.
322. Defendant denies the allegations contained in Paragraph 322 of Plaintiff’s Complaint.
323. Defendant denies the allegations contained in Paragraph 323 of Plaintiff’s Complaint.
324. Defendant denies the allegations contained in Paragraph 324 of Plaintiff’s Complaint.
325. Defendant denies the allegations contained in Paragraph 325 of Plaintiff’s Complaint.
Specifically Responding to “Count II (First Amendment Violation- The Facebook Postings)
326. Defendant hereby incorporates by reference as if fully set forth herein Defendant’s responses to Paragraphs 1 through 325 of Plaintiff’s Complaint.
327. Defendant admits that Plaintiff has those rights provided for by the First Amendment to the U.S. Constitution as interpreted by North Carolina state and federal courts and the United States Supreme Court. Except as admitted, Defendant denies the allegations contained in Paragraph 327 of Plaintiff’s Complaint.
328. Defendant denies the allegations contained in Paragraph 328 of Plaintiff’s Complaint.
329. Defendant admits that Plaintiff has those rights provided for by the First Amendment to the U.S. Constitution as interpreted by North Carolina state and federal courts and the United States Supreme Court. Except as admitted, Defendant denies the allegations contained in Paragraph 329 of Plaintiff’s Complaint.
330. Defendant denies the allegations contained in Paragraph 330 of Plaintiff’s Complaint.
331. Defendant denies the allegations contained in Paragraph 331 of Plaintiff’s Complaint.
332. Defendant denies the allegations contained in Paragraph 332 of Plaintiff’s Complaint.
39 Case 3:16-cv-00295-FDW-DCK Document 6 Filed 07/05/16 Page 39 of 48 333. Defendant denies the allegations contained in Paragraph 333 of Plaintiff’s Complaint.
334. Defendant denies the allegations contained in Paragraph 334 of Plaintiff’s Complaint.
335. Defendant denies the allegations contained in Paragraph 335 of Plaintiff’s Complaint.
336. Defendant denies the allegations contained in Paragraph 336 of Plaintiff’s Complaint.
337. Defendant denies the allegations contained in Paragraph 337 of Plaintiff’s Complaint.
338. Defendant denies the allegations contained in Paragraph 338 of Plaintiff’s Complaint.
339. Defendant denies the allegations contained in Paragraph 339 of Plaintiff’s Complaint.
340. Defendant denies the allegations contained in Paragraph 340 of Plaintiff’s Complaint.
341. Defendant denies the allegations contained in Paragraph 341 of Plaintiff’s Complaint.
342. Defendant denies the allegations contained in Paragraph 342 of Plaintiff’s Complaint.
343. Defendant denies the allegations contained in Paragraph 343 of Plaintiff’s Complaint.
Specifically Responding to “Count III (Wrongful Discharge in Violation of Public Policy- North Carolina Constitution Article 1, § 1 and 14)”
Defendant hereby incorporates by reference as if fully set forth herein Defendant’s responses to Paragraphs 1 through 343 of Plaintiff’s Complaint.
344. Defendant admits the allegations contained in Paragraph 344 of Plaintiff’s Complaint.
345. Defendant denies the allegations contained in Paragraph 345 of Plaintiff’s Complaint.
40 Case 3:16-cv-00295-FDW-DCK Document 6 Filed 07/05/16 Page 40 of 48 346. Defendant denies the allegations contained in Paragraph 346 of Plaintiff’s Complaint.
347. Defendant denies the allegation contained in Paragraph 347 of Plaintiff’s Complaint.
348. Defendant denies the allegation contained in Paragraph 348 of Plaintiff’s Complaint.
349. Defendant denies the allegation contained in Paragraph 349 of Plaintiff’s Complaint.
350. Defendant denies the allegation contained in Paragraph 350 of Plaintiff’s Complaint.
351. Defendant denies the allegation contained in Paragraph 351 of Plaintiff’s Complaint.
352. Defendant denies the allegation contained in Paragraph 352 of Plaintiff’s Complaint.
353. Defendant denies the allegation contained in Paragraph 353 of Plaintiff’s Complaint.
354. Defendant denies the allegation contained in Paragraph 354 of Plaintiff’s Complaint.
355. Defendant denies the allegation contained in Paragraph 355 of Plaintiff’s Complaint.
356. Defendant denies the allegation contained in Paragraph 356 of Plaintiff’s Complaint.
357. Defendant denies the allegation contained in Paragraph 357 of Plaintiff’s Complaint.
358. Defendant denies the allegation contained in Paragraph 358 of Plaintiff’s Complaint.
359. Defendant denies the allegation contained in Paragraph 359 of Plaintiff’s Complaint.
41 Case 3:16-cv-00295-FDW-DCK Document 6 Filed 07/05/16 Page 41 of 48 Specifically Responding to “Count IV (Violation of REDA, N.C.Gen.Stat. §95-241)
360. Defendant hereby incorporates by reference as if fully set forth herein Defendant’s responses to Paragraphs 1 through 359 of Plaintiff’s Complaint.
361. Defendant denies the allegations contained in Paragraph 361 of Plaintiff’s Complaint.
362. Defendant denies the allegations contained in Paragraph 362 of Plaintiff’s Complaint.
363. Defendant admits upon information and belief that Plaintiff emailed Wilkinson and Williams on August 7, 2014 reporting that the fence at 1517 North Graham Street had "some gaps and holes" and mentioning foot traffic on the other side of the fence in the evenings. Defendant further admits that Wilkinson responded to Plaintiff’s email six minutes later and advised that he had previously met with someone to specifically address the fence issues and that Hartsell Fencing was already scheduled to resolve the issue and Plaintiff responded by saying "Great! Thanks!" Except as admitted, Defendant denies the allegations contained in Paragraph 363 of Plaintiff’s Complaint.
364. Defendant denies that there were problems with the 1517 North Graham Street building or the air quality of such building when CFD employees moved in on or about August 12, 2014. Except as admitted, Defendant denies the allegations contained in Paragraph 364 of Plaintiff’s Complaint.
365. Defendant admits that Defendant discovered in the course of investigating this matter that Plaintiff complained to Fallon about the building and the money being used thereon on or about August 14, 2014. Except as admitted, Defendant denies the allegations contained in Paragraph 365 of Plaintiff’s Complaint.
366. Defendant admits the allegations contained in Paragraph 366 of Plaintiff’s Complaint.
367. Defendant denies the allegation contained in Paragraph 367 of Plaintiff’s Complaint.
368. Defendant denies the allegation contained in Paragraph 368 of Plaintiff’s Complaint.
369. Defendant denies the allegations contained in Paragraph 369 of Plaintiff’s Complaint.
370. Defendant denies the allegations contained in Paragraph 370 of Plaintiff’s Complaint.
42 Case 3:16-cv-00295-FDW-DCK Document 6 Filed 07/05/16 Page 42 of 48 371. Defendant denies the allegations contained in Paragraph 371 of Plaintiff’s Complaint.
372. Defendant admits the allegations contained in Paragraph 372 of Plaintiff’s Complaint.
373. Defendant admits upon information and belief that Plaintiff received a Notice of Right to Sue from the NCDOL on or about January 21, 2016 indicating that the Commissioner of Labor was choosing not to pursue a civil action in Superior Court on behalf of Plaintiff. Except as admitted, Defendant denies the allegations contained in Paragraph 373 of Plaintiff’s Complaint.
374. Defendant denies the allegation contained in Paragraph 374 of Plaintiff’s Complaint.
375. Defendant denies the allegation contained in Paragraph 375 of Plaintiff’s Complaint.
Specifically Responding to “Count V (Wrongful Discharge in Violation of Public Policy- the North Carolina Retaliatory Employment Discrimination Act, N.C. Gen. Stat. § 95- 241(a)(1)(b) and the Occupational Safety and Health Act of North Carolina, N.C. Gen. Stat. § 95-126, et. seq.)”
376. Defendant hereby incorporates by reference as if fully set forth herein Defendant’s responses to Paragraphs 1 through 375 of Plaintiff’s Complaint.
377. Defendant admits that Plaintiff complained to Eschert and Fallon. Except as admitted, Defendant denies the allegations contained in Paragraph 377 of Plaintiff’s Complaint.
378. Defendant denies the allegations contained in Paragraph 378 of Plaintiff’s Complaint.
379. Defendant denies the allegations contained in Paragraph 379 of Plaintiff’s Complaint.
380. Defendant denies the allegations contained in Paragraph 380 of Plaintiff’s Complaint.
381. Defendant denies the allegations contained in Paragraph 381 of Plaintiff’s Complaint.
382. Defendant denies the allegations contained in Paragraph 382 of Plaintiff’s Complaint.
383. Defendant denies the allegations contained in Paragraph 383 of Plaintiff’s Complaint.
43 Case 3:16-cv-00295-FDW-DCK Document 6 Filed 07/05/16 Page 43 of 48
384. Defendant denies the allegations contained in Paragraph 384 of Plaintiff’s Complaint.
385. Defendant denies the allegations contained in Paragraph 385 of Plaintiff’s Complaint.
386. Defendant denies the allegations contained in Paragraph 386 of Plaintiff’s Complaint.
387. Defendant denies the allegations contained in Paragraph 387 of Plaintiff’s Complaint.
388. Defendant denies the allegations contained in Paragraph 388 of Plaintiff’s Complaint.
389. Defendant denies the allegations contained in Paragraph 389 of Plaintiff’s Complaint.
Specifically Responding to “Count VI (Title VII 42 U.S.C. § 2000, et. seq.- Gender Discrimination and Retaliation against the City)”
390. Defendant hereby incorporates by reference as if fully set forth herein Defendant’s responses to Paragraphs 1 through 389 of Plaintiff’s Complaint.
391. Defendant denies the allegations contained in Paragraph 391 of Plaintiff’s Complaint.
392. Defendant denies the allegations contained in Paragraph 392 of Plaintiff’s Complaint.
393. Defendant denies the allegations contained in Paragraph 393 of Plaintiff’s Complaint.
394. Defendant denies the allegations contained in Paragraph 394 of Plaintiff’s Complaint.
395. Defendant denies the allegations contained in Paragraph 395 of Plaintiff’s Complaint.
396. Defendant denies the allegations contained in Paragraph 396 of Plaintiff’s Complaint.
397. Defendant denies the allegations contained in Paragraph 397 of Plaintiff’s Complaint.
44 Case 3:16-cv-00295-FDW-DCK Document 6 Filed 07/05/16 Page 44 of 48
FOURTH DEFENSE
Any restriction or condition complained of was reasonably related to the government's legitimate purpose in promoting efficiency and integrity in the discharge of official duties and maintaining proper discipline in the public service.
FIFTH DEFENSE
Plaintiff’s claims for damages are barred, reduced, and/or limited pursuant to applicable statutory provisions and common law doctrines regarding limitations on awards, caps on damages, laches and setoffs.
SIXTH DEFENSE
Plaintiff’s claims may be barred, in whole or in part, by the applicable statute of limitations.
SEVENTH DEFENSE
Plaintiff’s claims under the North Carolina Constitution are barred because Plaintiff has other adequate remedies under state and federal law.
EIGHTH DEFENSE
The employment practices of Defendant are now, and had been during the period of time referred to in the Complaint, conducted in all aspects in accordance with the State and Federal laws, and in good faith.
NINTH DEFENSE
Defendant’s actions, practices, and policies about which Plaintiff complains are and have been based on legitimate non-discriminatory reasons, were not contrary to any public policy or unlawful and were necessary to the orderly, safe, and efficient operation of Defendant’s business.
TENTH DEFENSE
Defendant has not deprived and is not depriving Plaintiff or any rights protected by Title VII of the Civil Rights Act of 1964, 42 USC Section 2000(e) et. seq.
ELEVENTH DEFENSE
To the extent that Plaintiff has failed to comply with all statutory prerequisites of REDA, OSHA or Title VII, including the relevant time limitations contained therein, Plaintiff’s claims are barred.
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TWELFTH DEFENSE
The employment actions about which Plaintiff complains occurred solely as a result of her own actions. THIRTEENTH DEFENSE
Plaintiff’s claim for punitive damages is in violation of the Fifth and Fourteenth Amendments to the Constitution of the United States in that it deprives Defendant of property without due process of law; further the claim for punitive damages is violative of the Fourteenth Amendment of the Constitution of the United States concerning protection; and the punitive damages claim is further in violation of the Eighth Amendment of the Constitution of the United States prohibiting in position of excessive fines.
FOURTEENTH DEFENSE
Plaintiff cannot recover punitive damages from Defendant because it is a public entity.
FIFTEENTH DEENSE
The allegations contained in Plaintiff’s Complaint fail to establish by clear and convincing evidence that Defendant acted with evil motive or intent or reckless or callous disregard for Plaintiff.
SIXTEENTH DEFENSE
Plaintiff’s claims should be dismissed to the extent the conduct Plaintiff claims she engaged in falls outside the scope of activity protected by REDA as set forth in N.C.Gen.Stat. § 95-241(a).
SEVENTEENTH DEFENSE
To the extent Plaintiff’s claims are found to be within the scope of activity protected by REDA as set forth in N.C.Gen.Stat. § 95-241(a), her claims should be dismissed pursuant to N.C.Gen.Stat. § 95-241(b) because Defendant would have taken the same adverse action even in the absence of the allegedly protected activity.
EIGHTEENTH DEFENSE
Plaintiff’s Title VII Retaliation claim should be dismissed because she fails to claim and cannot produce any evidence that she made any discrimination claims or filed charges or lawsuits during her employment or opposed unlawful practices related to employment discrimination based on race, color, sex, religion, national origin, age or disability while employed by Defendant.
46 Case 3:16-cv-00295-FDW-DCK Document 6 Filed 07/05/16 Page 46 of 48
NINETEENTH DEFENSE
Plaintiff’s Title VII Retaliation claim should be dismissed to the extent it is based on her allegedly opposing allegedly unsafe conditions and questioning financial management because Title VII does not cover these claims.
TWENTIETH DEFENSE
Defendant pleads the availability of alternative remedies in bar of Plaintiff’s claims.
TWENTY FIRST DEFENSE
Defendant reserves the right to plead additional affirmative defense as may be revealed during disclosure and/or discovery proceedings in this matter.
WHEREFORE, having fully answered Plaintiff’s Complaint, the Defendant prays:
1. The claims of the Plaintiff be dismissed and that the Plaintiff have and recover nothing from Defendant;
2. That this matter be tried before a jury;
3. The costs of this action be taxed against the Plaintiff;
4. Defendant recover attorneys’ fees; and
4. This Court order such further relief as it deems just and appropriate.
THIS 5th day of July, 2016.
/s/ Sara R. Lincoln Sara R. Lincoln, N.C. State Bar No. 22744 Lori R. Keeton, N.C. State Bar No. 25813 Lincoln Derr PLLC 4350 Congress Street, Suite 575 Charlotte, North Carolina 28209 Telephone: (704) 496-4500 Email: [email protected] Email: [email protected]
Attorneys for Defendant
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that this DEFENDANT CITY OF CHARLOTTE’S MOTION TO DISMISS AND ANSWER TO PLAINTIFF’S COMPLAINT was filed electronically and served electronically on the following:
Margaret B. Maloney, Esq. Maloney Law & Associates, PLLC 1824 E. Seventh Street Charlotte, NC 28204
Attorney for Plaintiff
THIS 5th day of July, 2016.
/s/ Sara R. Lincoln Sara R. Lincoln
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