Brookshire v. Nc Dept. of Transp.
| Decision Date | 19 December 2006 |
| Docket Number | No. COA05-955.,COA05-955. |
| Court | North Carolina Court of Appeals |
| Parties | David Ricky BROOKSHIRE, Plaintiff, v. NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, DIVISION OF MOTOR VEHICLES, and North Carolina Department of Crime Control and Public Safety, Defendants. |
Biggers & Hunter, P.L.L.C., by John C. Hunter, Asheville, for plaintiff-appellee.
Plaintiff alleged violations of N.C. Gen. Stat. §§ 126-84, 5 ("the whistleblower statute") and sought injunctive relief and monetary damages. The jury found for the plaintiff. Defendants moved for judgment notwithstanding the verdict, which motion the court denied. Defendants appeal. As discussed below, we affirm in part, reverse in part and remand.
Plaintiff began working for the Department of Motor Vehicles ("DMV") in June 1979 and rose to the position of lieutenant in District VIII of the DMV. In August 2000, plaintiff's supervisor Captain Gary Ramsey reported to Lieutenant Colonel Mike Sizemore at DMV headquarters in Raleigh that plaintiff had falsified documents and misused state property. Lt. Col. Sizemore then requested Internal Affairs Captain Carl Pigford to investigate the charges against plaintiff. Capt. Pigford completed the investigation and reported his results to a DMV executive management team. Capt. Pigford determined that plaintiff violated DMV policy and state law by: using his official position to solicit services, gifts and gratuities; altering, voiding and reducing an overweight citation as a favor for the vehicle's owner; using a state-owned vehicle for private purposes; conducting personal business while on state time; taking unauthorized leave from work; failing to report to work properly dressed; and falsifying time documents.
On 6 October 2000, Lt. Col. Sizemore held a pre-disciplinary hearing with plaintiff. Plaintiff admitted to using his official position to solicit services, gifts and gratuities, using a state-owned vehicle for personal purposes, and conducting personal business on state time. The executive management team recommended that plaintiff be terminated. Plaintiff received notice of the decision on 11 October 2000; he filed no internal grievance or appeal in connection with his termination.
On 10 October 2001, plaintiff filed the underlying action alleging that he was terminated as retaliation for engaging in activity protected under the whistleblower statute, specifically for cooperating with a State Bureau of Investigation ("SBI") investigation into corruption in District VIII of the DMV. On 24 October 2002, following discovery and trial preparation, plaintiff filed a voluntary dismissal without prejudice. On 23 October 2003, plaintiff timely re-filed the complaint against the present defendants. In October 2004, the jury returned a verdict in favor of plaintiff on the issue: whether or not plaintiff was terminated from DMV because he talked to the SBI? The court ordered that plaintiff be reinstated to his former position with back pay and benefits, and awarded interest and attorney's fees.
Defendants first argue that the court abused its discretion by denying their motion for a directed verdict at the close of all evidence. We disagree.
The standard of review on denial of a directed verdict is well-established:
On appeal, the standard of review on a motion for directed verdict "is whether, `upon examination of all the evidence in the light most favorable to the nonmoving party, and that party being given the benefit of every reasonable inference drawn therefrom, the evidence is sufficient to be submitted to the jury.'" Stamm v. Salomon, 144 N.C.App. 672, 679, 551 S.E.2d 152, 157 (2001) (quoting Fulk v. Piedmont Music Ctr., 138 N.C.App. 425, 429, 531 S.E.2d 476, 479 (2000)). "The party moving for a directed verdict bears a heavy burden in North Carolina." Edwards v. West, 128 N.C.App. 570, 573, 495 S.E.2d 920, 923 (1998). A motion for directed verdict should be denied where "`there is more than a scintilla of evidence supporting each element of the plaintiff's case.'" Stamm, 144 N.C.App. at 679, 551 S.E.2d at 157 (quoting Little v. Matthewson, 114 N.C.App. 562, 565, 442 S.E.2d 567, 569 (1994), aff'd, 340 N.C. 102, 455 S.E.2d 160 (1995)). In addition, when the decision to grant a motion for directed verdict "is a close one, the better practice is for the trial judge to reserve his decision on the motion and submit the case to the jury."
Wilson v. Burch Farms, Inc., ___ N.C.App. ___, ___, 627 S.E.2d 249, 255 (2006). Here, plaintiff contends that he was terminated in violation of the whistleblower statute, which provides in pertinent part:
(a) No head of any State department, agency or institution or other State employee exercising supervisory authority shall discharge, threaten or otherwise discriminate against a State employee regarding the State employee's compensation, terms, conditions, location, or privileges of employment because the State employee, or a person acting on behalf of the employee, reports or is about to report, verbally or in writing, any activity described in G.S. 126-84, unless the State employee knows or has reason to believe that the report is inaccurate.
N.C. Gen.Stat. § 126-85 (2006). To establish a prima facie case under N.C. Gen.Stat. § 126-85, a plaintiff must establish that "(1) [plaintiff] engaged in protected activity, (2) followed by an adverse employment action, and (3) that the protected conduct was a substantial or motivating factor in the adverse action." Kennedy v. Guilford Tech. Community College, 115 N.C.App. 581, 584, 448 S.E.2d 280, 282 (1994), overruled in non-pertinent part, Newberne v. Dep't of Crime Control & Pub. Safety, 359 N.C. 782, 618 S.E.2d 201 (2005) (quoting McCauley v. Greensboro City Bd. of Educ., 714 F.Supp 146, 151 (M.D.N.C.1987)). Once a defendant presents evidence that a plaintiff's termination "is based on a legitimate non-retaliatory motive, the burden shifts to the plaintiff to present evidence . . . that his actions under the Act were a substantial causative factor" in the termination. Hanton v. Gilbert, 126 N.C.App. 561, 571-72, 486 S.E.2d 432, 439, disc. review denied, 347 N.C. 266, 493 S.E.2d 454 (1997) ().
Here, the evidence showed that plaintiff engaged in protected activity in cooperating with...
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