MICHAEL MOLE‘, Plaintiff, v. CITY OF DURHAM, NORTH CAROLINA, a municipality, Defendant.
COA 19-683
IN THE COURT OF APPEALS OF NORTH CAROLINA
5 October 2021
2021-NCCOA-527
Durham County, No. 18 CVS 4073
Appeal by Plaintiff from order entered 24 May 2019 by Judge John M. Dunlow in Durham County Superior Court. Heard in the Court of Appeals 10 June 2021.
The McGuinness Law Firm, by J. Michael McGuinness, and Edelstein & Payne, by M. Travis Payne, for Plaintiff-Appellant.
Kennon Craver, PLLC, by Henry W. Sappenfield and Michele L. Livingstone, for Defendant-Appellee.
Essex Richards, P.A., by Norris A. Adams, II, for North Carolina Fraternal Order of Police, amicus curiae.
In his first experience negotiating the surrender of an armed and barricaded suspect, without another negotiator backing him up, Durham Police Sergeant Michael Mole’ might have given up when the suspect‘s gun discharged at close range. He didn‘t, and two hours later he had persuaded the suspect to drop his weapon and surrender. The suspect, other citizens, and law enforcement officers were safe. But Sergeant Mole’ was fired because he had secured the suspect‘s surrender by promising to allow him to smoke a marijuana cigarette once in custody, and he made good on the promise immediately following the arrest.
Sergeant Mole’ sued the City of Durham, alleging that his employer violated his rights under the
Because the complaint alleges a colorable violation of
I. FACTUAL AND PROCEDURAL HISTORY
The complaint pleads the following facts:
Sergeant Mole’ began working for the Durham Police Department in May 2007. He received hostage negotiation training in May 2014, but he did not negotiate a barricaded subject or hostage situation until the events giving rise to this case.
On 28 June 2016, the Durham Police Department dispatched officers to an apartment in Durham to serve an arrest warrant on Julius Smoot (“Smoot“). After entering the apartment, officers discovered that Smoot had barricaded himself in an upstairs bedroom. Smoot yelled that he had a gun and that he would use it on himself in ten minutes unless he was allowed to see his wife and son. The officers retreated and requested a hostage negotiator.
Sergeant Mole’ was the only hostage negotiator on duty at the time. He arrived at the apartment five minutes before Smoot‘s deadline and began negotiations with the primary goals of extending the deadline and keeping Smoot alive. During these negotiations, Smoot accidentally discharged his firearm.
Sergeant Mole’ continued to negotiate with Smoot for approximately two hours. During this time, Smoot said he planned to smoke a “blunt,” a marijuana cigarette. Sergeant Mole‘, reluctant to allow an armed and barricaded subject to impair his mental state,
Smoot then dropped his gun, handcuffed himself, and surrendered to Sergeant Mole’ in the apartment. Still in handcuffs, Smoot asked for his pack of legal tobacco cigarettes and lighter, which were on a nearby table, and Sergeant Mole’ handed those items to him. Smoot then pulled a marijuana blunt from behind his ear, lit it with the lighter, and smoked approximately half of it.
The Durham Police Department launched an internal investigation of Sergeant Mole‘s actions following Smoot‘s peaceful surrender. On 24 October 2016, approximately four months after the incident, Sergeant Mole’ was informed in writing that a pre-disciplinary hearing would take place the next day, despite Durham‘s written policy requiring advance notice of at least three days. Following the hearing, Sergeant Mole‘s immediate supervisors recommended that he be reprimanded. But Durham terminated him.
In November 2018 Sergeant Mole’ filed a complaint alleging Durham had violated his state constitutional rights to due process, equal protection, and the fruits of his labor under the
II. ANALYSIS
Sergeant Mole’ argues that the facts pled in his complaint support claims for violations of his state constitutional rights to due process, equal protection, and the fruits of his labor.
A. Standard of Review
We review an order granting a 12(b)(6) motion to dismiss de novo to determine whether the complaint states a claim under which relief can be granted. Wells Fargo Bank, N.A. v. Corneal, 238 N.C. App. 192, 195, 767 S.E.2d 374, 377 (2014). We liberally construe the complaint and take the material factual allegations as true. Id. Legal conclusions, unlike factual allegations, are not presumed valid. Id.
B. Fruits of One‘s Labor
Sergeant Mole’ argues that his termination violated his right to the fruits of his labor guaranteed by
The “fruits of their own labor” clause was added to our state constitution in 1868. It was adopted the same year the
Our appellate courts did not consider the clause until the 20th century, when it was applied to check the State‘s professional licensing powers. See generally, e.g., State v. Harris, 216 N.C. 746, 6 S.E.2d 854 (1940) (dry cleaning); State v. Ballance, 229 N.C. 764, 51 S.E.2d 731 (1949) (photography); Roller v. Allen, 245 N.C. 516, 96 S.E.2d 851 (1957) (tile installation). These decisions recognized a person‘s ability to earn a livelihood as a protected constitutional right and struck down licensing restrictions not rationally related to public health, safety, or welfare and not reasonably necessary to promote a public good or prevent a public harm. Roller, 245 N.C. at 518, 96 S.E.2d at 854; Ballance, 229 N.C. at 769-70, 51 S.E.2d at 735.
In recent years, our Supreme Court has extended application of the fruits of one‘s labor clause beyond licensing restrictions to other state actions that interfere with one‘s right to earn a livelihood. King v. Town of Chapel Hill held that a town ordinance capping towing fees was arbitrary and violated tow truck drivers’ rights to enjoy the fruits of their labor. 367 N.C. 400, 408, 758 S.E.2d 364, 371 (2014). Tully v. City of Wilmington held that a municipal police department violated a public employee‘s constitutional right to enjoy the fruits of his own labor when it failed to follow its own promotion procedures. 370 N.C. at 539, 810 S.E.2d at 217.
Tully involved a Wilmington police officer who was denied a promotion after he failed a mandatory examination that tested an officer‘s knowledge of the law. 370 N.C. at 528-29, 810 S.E.2d at 211. His exam answers were correct based on the current state of the law, but he failed the exam because the answer key was outdated. Id. Written department policy laid out the promotion and examination procedures and provided that candidates could appeal any portion of the selection process, so the officer sought to appeal his test results. Id. at 529-30, 810 S.E.2d at 211. The City of Wilmington refused to hear the officer‘s appeal, determining the test results “were not a grievable item” and that nothing could be done. Id. at 529, 810 S.E.2d at 211 (quotation marks omitted).
Our Supreme Court held that this denial of process violated the officer‘s constitutional rights under
[T]o state a direct constitutional claim grounded in this unique right under the North Carolina Constitution, a public employee must show that no other state law remedy is available and plead facts establishing three elements: (1) a clear, established rule or policy existed regarding the employment promotional process that furthered a legitimate governmental interest; (2) the employer violated that policy; and (3) the plaintiff was injured as a result of that violation.
Id. at 536-37, 810 S.E.2d at 216.1
1. Tully and Article I, Section 1 Apply to Mole‘s Discipline
In deciding whether Sergeant Mole’ has asserted a valid
In declaring the existence of a valid claim under
The Supreme Court in Tully ultimately announced that “Article I, Section 1 also applies when a governmental entity acts in an arbitrary and capricious manner toward one of its employees by failing to abide by promotional procedures that the employer itself put in place.” 370 N.C. at 535-36, 810 S.E.2d at 215. In reaching this conclusion, Tully relied on the United States Supreme Court‘s reasoning in United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 98 L. Ed. 681 (1954), and lower court decisions applying Accardi. According to Tully, Accardi and the cases applying it “recognize[] the impropriety of government agencies ignoring their own regulations, albeit in other contexts.” 370 N.C. at 536, 810 S.E.2d at 215 (citing Accardi, 347 U.S. at 268, 98 L. Ed. at 687; then citing United States v. Heffner, 420 F.2d 809, 811-12 (4th Cir. 1969); and then citing Farlow v. N.C. State Bd. of Chiropractic Examʼrs, 76 N.C. App. 202, 208, 332 S.E.2d 696, 700 (1985)).
Decisions recognizing the impropriety of government agencies ignoring their own rules in “other contexts,” though not directly cited in Tully,3 include the termination of public employees in violation of internal disciplinary procedures. See Service v. Dulles, 354 U.S. 363, 388-89, 1 L. Ed. 2d 1403, 1418 (1957) (applying Accardi to reinstate a foreign service officer fired by the Secretary of State despite a federal statute allowing at-will discharge because the agency violated its own procedures); Vitarelli v. Seaton, 359 U.S. 535, 545-46, 3 L. Ed. 2d 1012, 1020-21 (1959) (reinstating employment of a federal security guard under Accardi because the
agency violated its own procedural rules at his termination hearing). These decisions do not interpret North Carolina law. But just as Tully found other decisions applying Accardi pertinent, we find the analysis in Dulles and Vitarelli instructive in our review of Tully and, for the reasons above, hold that Tully‘s articulation of
2. Sufficiency of Mole‘s Complaint Under Tully
Having held that the disciplinary procedure at issue here falls within the ambit of Tully, we next examine whether the allegations in Sergeant Mole‘s complaint otherwise satisfy the three elements established by our Supreme Court in that decision.4 The
Sergeant Mole‘s complaint alleges several policy violations of varying stripes, namely: (1) the acting watch commander failed to deploy the hostage negotiation team, the Special Enforcement Team, or stage fire and emergency medical services; (2) the watch commander negotiated with Smoot without Sergeant Mole‘s knowledge; (3) an “after-action report/critical incident critique” was not completed; (4) Sergeant Mole’ took Smoot into custody because the designated tactical personnel were never deployed; (5) Sergeant Mole’ was not offered psychological services following the incident; (6) other officers failed to secure prior written consent to conduct the search that initiated the standoff with Smoot; (7) the incident should have been designated a high-risk warrant service but was not; (8) Sergeant Mole’ was not provided quarterly training and he did not meet annually with the department‘s Special Enforcement Team as required for hostage negotiators; and (9) Durham gave Sergeant Mole’ only 24 hours’ notice of his pre-disciplinary conference instead of the minimum 72 hours’ notice mandated by policy.
The first eight policy violations alleged above put Sergeant Mole’ into an untenable position, but they do not state a claim under Tully. Tully protects public employees from unreasonable violations of employment policies, not field operating or training procedures that do not bear upon internal processes governing the employer-employee relationship. See Tully, 370 N.C. at 537, 810 S.E.2d at 216 (“Tully‘s allegations show that the City‘s actions injured him by denying him a fair opportunity to proceed to the next stage of the competitive promotional process, thereby ‘unfairly impos[ing] [a] stigma or disability that will itself foreclose the freedom to take advantage of employment opportunities.‘” (quoting Presnell, 298 N.C. at 724, 260 S.E.2d at 617) (alteration in original)).
But Sergeant Mole‘s allegation that he was given improper and inadequate notice of his pre-disciplinary hearing does fall within
Sergeant Mole’ has likewise satisfied the final element, injury, based on a liberal construction of his complaint. Sergeant Mole’ specifically alleges that “[h]ad [he] been afforded his opportunity to prepare at a minimum of three days instead of less than 24 hours, Sergeant Mole’ would have had reasonable notice and could have better prepared and provided a more comprehensive response.” From there, he asserts Durham “failed to comply with mandatory conditions precedent before proceeding with dismissal. . . [and] did not comply with its own stated [disciplinary] policies,” before alleging Durham‘s “conduct including actions and omissions in its treatment of Sergeant Mole’ w[as] arbitrary, capricious, irrational and predicated upon selective enforcement of personnel and law enforcement policies and disparate treatment in discipline and thereby deprived Sergeant Mole’ of the fruits of [his] labors.” These allegations are similar to those held adequate to demonstrate a claim in Tully, 370 N.C. at 536-37, 810 S.E.2d at 215-16, and we therefore hold Sergeant Mole’ has sufficiently alleged he “was injured as a result of [Durham‘s procedural] violation[s].” Id. at 537, 810 S.E.2d at 216.5
C. Due Process and Equal Protection
We next address the two remaining constitutional claims dismissed by the trial court. As explained below, we affirm the trial court based on precedent.
1. Due Process
The
In order to succeed on a due process challenge, the plaintiff must first show that he “has been deprived of a protected interest in ‘property’ or ‘liberty.‘” Dobrowolska v. Wall, 138 N.C. App. 1, 11, 530 S.E.2d 590, 598 (2000) (quoting Am. Mfrs. Mut. Ins. v. Sullivan, 526 U.S. 40, 59, 143 L. Ed. 2d 130, 149 (1999)). The court must decide whether the interest relates to a fundamental right “rooted in the traditions and conscience of our people.” Reno v. Flores, 507 U.S. 292, 303, 123 L. Ed. 2d 1, 17 (1993) (citation and quotation marks omitted). “Property interests, of course, are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law—rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” Bd. of Regents v. Roth, 408 U.S. 564, 577, 33 L. Ed. 2d 548, 561 (1972). Whether a person‘s interest in continued employment falls within the scope of constitutional protection is determined under the law of the state where the person is employed. Bishop v. Wood, 426 U.S. 341, 344, 48 L. Ed. 2d 684, 690 (1976).
We are constrained by North Carolina Supreme Court precedent holding that employees in this state generally do not
Sergeant Mole’ argues Durham‘s internal personnel policies established an “indirect or informal” property right in his continued employment. His complaint identifies governing provisions such as Durham‘s “Disciplinary and Grievance” policy and its “practice and custom of commensurate discipline.” However, the complaint does not identify any policies that have been incorporated into ordinance or statute or included in Sergeant Mole‘s employment contract.
We are bound by precedent holding that policies like those identified by Sergeant Mole’ do not give rise to a protected property interest. In Wuchte v. McNeil, this Court held that a Durham police officer, terminated without being afforded procedures provided by the city‘s personnel policies, could not state a claim for wrongful termination without evidence that his employment contract, a statute, or an ordinance provided that he could only be dismissed for good cause. 130 N.C. App. 738, 741-42, 505 S.E.2d 142, 145 (1998).6 We noted that “[a]n employee is presumed
to be an employee-at-will absent a definite term of employment or a condition that the employee can only be fired only ‘for cause.‘” Id. at 740, 505 S.E.2d at 144 (citation omitted). In Wuchte, as in this case, the plaintiff relied on personnel policies that had not been enacted as an ordinance, and we held that unilaterally promulgated personnel memoranda did not establish a protected property interest. Id. at 742, 505 S.E.2d at 145.7
By contrast, in Howell v. Town of Carolina Beach, this Court held that a manual adopted by the town as an ordinance granted employees a “reasonable expectation of employment and a property interest within the meaning of the due process clause.” 106 N.C. App. 410, 417, 417 S.E.2d 277, 281 (1992). Sergeant Mole‘s complaint does not allege that Durham has codified its personnel policies in an ordinance.
As we noted above, whether an employee has a constitutionally protected interest under the due process clause is not determined by reference to the federal constitution but depends on state law. Bishop, 426 U.S. at 344, 48 L. Ed. 2d at 690.
Federal courts applying North Carolina law have recognized that personnel rules and regulations merely supply internal administrative guidelines and do not grant a property interest subject to due process protections unless enacted as an ordinance. Pittman v. Wilson Cty., 839 F.2d 225, 229 (4th Cir. 1988); Dunn v. Town of Emerald Isle, 722 F.Supp. 1309, 1311 (E.D.N.C. 1989).
Sergeant Mole’ notes that he was granted “permanent employee” status after a probationary period, and his complaint alleges this status grants him the “right to be afforded due process in the disciplinary system.” But without contract provisions setting a term of employment or procedures by which the employment might be terminated, “permanent” employment is presumed to be terminable at the will of either party and does not alone confer a property or liberty interest in continued employment. Nantz v. Emp‘t Sec. Commʼn, 290 N.C. 473, 477, 226 S.E.2d 340, 343 (1976). But
Sergeant Mole’ also argues that his dismissal was arbitrary and capricious, giving rise to a claim for violation of his due process rights “to continued employment when Defendant arbitrarily terminated [him].” But our Supreme Court has held that an at-will employee has no right to continued employment, and thus arbitrary conduct by an at-will employer does not state a cognizable violation of the due process protections of the
To be sure, this Court has recognized violations of state and federal substantive due process protections without requiring the plaintiff allege or demonstrate the deprivation of a recognized property or liberty interest where the State‘s conduct was “so egregious that it shocks the conscience or offends a sense of justice.” Toomer v. Garrett, 155 N.C. App. 462, 470, 574 S.E.2d 76, 84 (2002). But that case, unlike Tully, did not involve an employment decision. It instead concerned a state agency‘s public disclosure of an employee‘s personnel file, including social security number, medical diagnoses, and personal financial data, without any rational relationship to any governmental interest. 155 N.C. App. at 472, 574 S.E.2d at 85.8 In contrast to
Toomer, a holding here that Sergeant Mole‘s allegedly arbitrary and capricious termination violated his substantive due process rights, without a cognizable property interest in continued employment, would effectively hold that he could not be terminated except for cause. As discussed above, North Carolina employees do not enjoy that substantive due process protection unless it is explicitly incorporated into their employment contract or promulgated by statute or ordinance.
2. Equal Protection
Sergeant Mole’ also asserts that Durham subjected him to disparate treatment as compared to similarly situated employees. His complaint cites examples of misconduct by other Durham police officers that he alleges were more egregious than the actions that led to his termination.
Both our federal and state constitutions guarantee that individuals receive “the equal protection of the laws.”
A typical equal protection claim alleges that the plaintiff was treated differently by legislation or a state actor due to their membership in a suspect class: race, color, religion, national origin, etc. See Engquist v. Or. Dep‘t of Agric., 553 U.S. 591, 601, 170 L. Ed. 2d 975, 985 (2008). Where the treatment varies based upon a suspect class or impacts a fundamental right, we apply strict scrutiny and determine whether the state action is necessary to promote a compelling government interest. State ex. rel. Utils. Commʼn v. Carolina Util. Customers Ass‘n, 336 N.C. 657, 681, 446 S.E.2d 332, 346 (1994). The United States Supreme Court and, in turn, North Carolina courts, have also recognized the existence of “class of one” equal protection claims in which plaintiffs allege they were intentionally treated differently from others similarly situated. Village of Willowbrook v. Olech, 528 U.S. 562, 564, 145 L. Ed. 2d 1060, 1063 (2000); In re Application of Ellis, 277 N.C. 419, 424, 178 S.E.2d 77, 80 (1970) (recognizing “the constitutional limitation forbidding arbitrary and unduly discriminatory interference with the right of property owners“). When the plaintiff is not a member of a suspect class and does not assert wrongful termination in violation of a fundamental right,9 “it is necessary to show only that the classification created by the [government action] bears a rational relationship to some legitimate state interest.” Richardson, 345 N.C. at 134, 478 S.E.2d at 505 (citation omitted).
Sergeant Mole’ asserts a class-of-one claim by arguing that he was situated similarly to other Durham police officers who violated department policies and received significantly less severe discipline. The United States Supreme Court has recognized this type of claim in relation to real property rights. In Olech the Court held the complaint, alleging that the defendant arbitrarily required the plaintiff to cede a larger easement than her neighbors in order to connect to the municipal water supply, was sufficient to state a class-of-one claim. 528 U.S. at 565, 145 L. Ed. 2d at 1063-64. Previous Supreme Court decisions also recognized this type of claim without explicitly identifying the claims as “class-of-one.” See Sioux City Bridge Co. v. Dakota Cty., 260 U.S. 441, 446-47, 67 L. Ed. 340, 343 (1923) (holding that assessing property at 100% of its true value when all other property in the county was evaluated at 55% violated equal protection); Allegheny Pittsburgh Coal Co. v. Cty. Comm‘n of Webster Cty., 488 U.S. 336, 341-43, 102 L. Ed. 2d 688, 695-96 (1989) (holding assessment methodology that produced “dramatic differences in valuation” between petitioners’ property and comparable surrounding land violated equal protection).
But the United States Supreme Court has held that class-of-one claims cannot be stated in the employment context. In Engquist, the plaintiff asserted a class-of-one equal protection claim against her employer, alleging that she was terminated for arbitrary, vindictive, and malicious reasons. 553 U.S. at 595, 170 L. Ed. 2d at 982. A coworker who had personal issues with the plaintiff formed an alliance with an assistant director who had assured a client that the plaintiff would be “gotten rid of.” Id. at 594, 170 L. Ed. 2d at 981. The plaintiff was then passed over for a promotion in favor of a less-qualified coworker and told that she could only stay with the department if she accepted a demotion. Id. at 595, 170 L. Ed. 2d at 981.
While the Court recognized that the equal protection clause‘s protections apply to administrative as well as legislative acts and that states do not escape its requirements in their role as employers, it distinguished between the government taking action as a regulator and the government taking action “as proprietor, to manage its internal operation.” Id. at 598, 170 L. Ed. 2d at 983 (cleaned up). The Engquist Court noted that some forms of state action, including employment decisions, “involve discretionary decisionmaking based on a vast array of subjective, individualized assessments.” Id. at 603, 170 L. Ed. 2d at 987. The Court reasoned that as opposed to the regulation of third parties, treating similarly situated employees differently is “par for the course.” Id. at 604, 170 L. Ed. 2d at 988. The Court characterized class-of-one claims in the public employment context as “contrary to the concept of at-will employment,” id. at 606, 170 L. Ed. 2d at 989, and held that “the class-of-one theory of equal protection has no application in the public employment context[.]” Id. at 607, 170 L. Ed. 2d at 989.
We must again consider whether the analogous clause in the North Carolina Constitution is more protective and extends the guarantee of equal protection in the public employment context. As with due process, the fact that the
However, precedent precludes us from unfettered liberal analysis. This Court has clearly and explicitly held that the equal protection rights guaranteed by the
III. CONCLUSION
For the reasons explained above, we hold that the trial court erred in dismissing Sergeant Mole‘s claim for violation of his right to the fruits of his labor and reverse that portion of the trial court‘s order. We affirm the trial court‘s dismissal of Sergeant Mole‘s remaining claims. The matter is remanded to the trial court for further proceedings not inconsistent with this opinion.
AFFIRMED IN PART, REVERSED IN PART AND REMANDED.
JUDGES ZACHARY AND CARPENTER concur.