866 S.E.2d 773
N.C. Ct. App.2021Background
- Durham Police Sergeant Michael Mole’ (negotiator) secured the peaceful surrender of a barricaded, armed suspect (Julius Smoot) by promising the suspect he could smoke a marijuana blunt after surrender; the suspect smoked while handcuffed.
- Durham investigated and ultimately terminated Mole’; he received less than the 72-hour pre-disciplinary notice required by departmental policy (about 24 hours).
- Mole’ sued the City alleging violations of the North Carolina Constitution: Article I, §1 (the right to enjoy the fruits of one’s labor), due process, and equal protection.
- The trial court dismissed the complaint under Rule 12(b)(6); Mole’ appealed to the Court of Appeals.
- The Court of Appeals held Mole’ pleaded a viable Article I, §1 claim based on Durham’s failure to follow its own disciplinary notice policy (applying Tully), reversed dismissal on that claim, but affirmed dismissal of his due process and equal protection claims under binding precedent.
- The case was remanded for further proceedings on the Article I, §1 claim only.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether termination violated Article I, §1 (fruits of one's labor) | Mole’: Durham violated his Article I, §1 rights by arbitrarily failing to follow its disciplinary procedures (insufficient pre-disciplinary notice), causing injury | Durham: Tully limited to promotion process; no actionable constitutional violation here | Court: Tully's reasoning extends to discipline; Mole’ plausibly alleged violation of Durham’s disciplinary notice policy; reversal as to Article I, §1 claim |
| Whether Mole’ had a property/liberty interest entitling him to due process | Mole’: departmental policies and 'permanent' status created a protected employment interest | Durham: at-will employment; policies not codified into ordinance/contract; no constitutionally protected interest | Court: Affirmed dismissal—no protected property interest absent statute, ordinance, or contract (Presnell/Wuchte controlling) |
| Whether arbitrary/egregious termination supports a substantive due process claim | Mole’: termination was arbitrary and capricious and offended substantive due process | Durham: at-will employment precludes such a claim absent a protected interest; conduct not of Toomer magnitude | Court: Affirmed dismissal—no substantive due process remedy for at-will termination absent recognized property/liberty interest |
| Whether Mole’ can state an equal protection (class-of-one) claim in public employment | Mole’: Durham treated him differently than similarly situated officers and disciplined him more harshly | Durham: Engquist bars class-of-one equal protection claims in the public employment context | Court: Affirmed dismissal—bound by Engquist and North Carolina precedent; class-of-one theory does not apply to public employment (invited NC Supreme Court review) |
Key Cases Cited
- Tully v. City of Wilmington, 370 N.C. 527, 810 S.E.2d 208 (N.C. 2018) (Art. I, §1 protects employees when government arbitrarily ignores its own employment procedures; sets three-element pleading test)
- Presnell v. Pell, 298 N.C. 715, 260 S.E.2d 611 (N.C. 1979) (recognized right to pursue occupation free from unreasonable state action; discussed limits on property/liberty interests)
- Wuchte v. McNeil, 130 N.C. App. 738, 505 S.E.2d 142 (N.C. Ct. App. 1998) (personnel policies not incorporated into law or contract do not create a protected property interest)
- Engquist v. Or. Dep’t of Agric., 553 U.S. 591 (U.S. 2008) (class-of-one equal protection claims are not available in the public employment context)
- United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (U.S. 1954) (government must follow its own regulations; persuasive precedent for enforcing internal procedural rules)
- Service v. Dulles, 354 U.S. 363 (U.S. 1957) (applied Accardi to reinstate employee terminated in violation of agency rules)
- Vitarelli v. Seaton, 359 U.S. 535 (U.S. 1959) (applied Accardi principles where agency violated its own procedural rules at termination)