Minneman v. Martin
442 S.E.2d 564
N.C. Ct. App.
1994
Check Treatment
ARNOLD, Chief Judge.

Defendants first argue the trial court erred in failing to grant summary judgment for defendants Martin, Flaherty, Taylor, Stelle, and Barrett, all of whom were sued in their official capacity, on the basis of sovereign immunity.

In general, denial of a motion for summary judgment is interlocutory and not immediately appealable. EEE-ZZZ Lay Drain Co. v. N.C. Dept. of Human Resources, 108 N.C. App. 24, 422 S.E.2d 338 (1992). Despite this general rule, where sovereign immunity is raised as a defense, “a substantial right is affected and the denial is immediately appealable.” Id. at 27, 422 S.E.2d at 340.

Sovereign immunity protects the State and its agents from suit, Slade v. Vernon, 110 N.C. App. 422, 429 S.E.2d 744 (1993), and the General Assembly determines “when and under what circumstances the State may be sued.” Insurance Co. v. Gold, Commissioner of Insurance, 254 N.C. 168, 173, 118 S.E.2d 792, 795 (1961). Sovereign immunity applies not only when the State is a named defendant but also when its agencies, departments, and institutions are named defendants. Jones v. Pitt County Mem. Hospital, 104 N.C. App. 613, 410 S.E.2d 513 (1991). Waiver will not be inferred lightly, and statutes waiving immunity will be strictly construed. Id.

In Harwood v. Johnson, our Supreme Court stated that “[a] suit against defendants in their official capacities, as public officials or a public employee ... is a suit against the State.” Harwood v. Johnson, 326 N.C. 231, 238, 388 S.E.2d 439, 443, reh’g denied, 326 N.C. 488, 392 S.E.2d 90 (1990). Where immunity has not been waived, through consent or statutory waiver, these officials may not be sued in their official capacities. Id. Conversely, where sovereign immunity does not stand as a bar to suit, such defendants may be sued in their official capacities.

The policy of the Whistleblower Act, as it pertains to this case, is to encourage State employees to “report . . . evidence of activity by a State agency or State employee constituting *619 . . . (4) Substantial and specific danger to the public health and safety.” N.C. Gen. Stat. § 126-84 (1993). It prohibits discrimination by the “head of any State department, agency or institution or other State employee exercising supervisory authority” after an employee reports activities described in G.S. § 126-84 and allows an employee to “maintain an action . . . against the person or agency who committed the violation.” N.C. Gen. Stat. §§ 126-85, to -86 (1993) (emphasis added). The Act goes beyond merely allowing suit, however, and provides various remedies for the injured employee, including injunctive relief, damages, attorney’s fees, and, in some cases, treble damages. N.C. Gen. Stat. § 126-87 (1993).

The Whistleblower Act, in providing for specific remedies, represents a clear statutory waiver of sovereign immunity to redress violations of the nature proscribed in G.S. § 126-85. The question, then, becomes one of scope. Defendants contend that suit may be maintained under the statute solely against defendant DHR, the responsible agency, and defendant Irigaray, the responsible person. They argue that defendants Martin, Flaherty, Taylor, Stelle, and Barrett are protected by sovereign immunity because there is no showing that any of the above named defendants “retaliated” against plaintiff. Plaintiff, in fact, concedes that four defendants — . Martin, Flaherty, Taylor, and Stelle — did not discriminate against her. She argues, however, that their inclusion is necessary and permissible solely to effectuate any equitable relief awarded by the courts. Contrary to plaintiffs assertions, however, her complaint reveals that, in addition to the injunctive relief mentioned on appeal, she also seeks compensatory and treble damages from all defendants in their official capacities.

We will first address plaintiff’s claims for compensatory and treble damages. In Hare v. Butler, this Court upheld the dismissal of a negligence claim against Mecklenburg County, the county DSS, and DSS personnel sued in their official capacity. Hare v. Butler, 99 N.C. App. 693, 394 S.E.2d 231, disc. review denied, 327 N.C. 634, 399 S.E.2d 121 (1990). While that decision was based in part on the complainant’s failure to allege the purchase of liability insurance, this Court also noted that the complainant failed to allege negligence on the part of Mecklenburg County and three social workers. Id. Here, although plaintiff’s complaint contains allegations of Whistleblower violations, plaintiff’s concessions make it clear that defendants Martin, Flaherty, Taylor, and Stelle have committed no violations of the Whistleblower Act. Thus, the trial *620 court should have granted summary judgment on these claims. We note, however, that the trial court properly denied summary judgment as to defendant Barrett since a factual question exists as to whether he committed Whistleblower violations.

Turning to plaintiff’s equitable claim, she urgently contends that defendants are subject to suit in their official capacities solely to ensure the enforcement of any prospective equitable relief granted by the courts. She further contends that this Court must use the reasoning employed in Corum v. University of North Carolina, 330 N.C. 761, 413 S.E.2d 276, cert. denied, 506 U.S. ---, 121 L. Ed. 2d 431 (1992), a case involving a 42 U.S.C. § 1983 claim. That case states that “official-capacity actions for prospective relief are not treated as actions against the State” and public officials are not protected by immunity. Corum v. University of North Carolina, 330 N.C. 761, 771, 413 S.E.2d 276, 283 (1992) (quoting Will v. Michigan Dept. of State Police, 491 U.S. 58, 105 L. Ed. 2d 45 (1989)). We disagree with plaintiff’s contention and choose to rely on Corum for a different reason.

The plaintiff in Corum sought equitable relief against ASU, UNC, President Spangler, and Chancellor Thomas in their official capacities. While the Court held that sovereign immunity did not bar the pursuit of equitable remedies under § 1983, the Corum Court also held that plaintiff failed to forecast evidence of wrongdoing by ASU, UNC, President Spangler, or Chancellor Thomas, and that summary judgment should have been entered for those defendants. Though not directly on point, we believe Corum is instructive because, here, as in Corum, plaintiff presented no evidence of wrongdoing on the part of defendants Martin, Flaherty, Taylor, and Stelle. We conclude that the trial court erred in denying summary judgment as to defendants Martin, Flaherty, Taylor, and Stelle, none of whom had any part in the alleged Whistleblower violations. Plaintiff has presented sufficient evidence, however, to withstand a motion for summary judgment as to defendant Barrett.

In conclusion, the trial court’s denial of summary judgment on the basis of sovereign immunity is reversed as to defendants Martin, Flaherty, Taylor, and Stelle, and affirmed as to defendants Barrett and Irigaray. Moreover, in accord with our earlier rulings on the parties’ motions, the rest of this appeal is dismissed as interlocutory.

*621 Reversed in part, affirmed in part.

Judges WYNN and MARTIN concur.