McLaughlin v. Bailey

• Decision Date: 07 April 2015
• Docket Number: No. COA14–446.,COA14–446.
• Citation: 771 S.E.2d 570,240 N.C.App. 159
• Court: North Carolina Court of Appeals
• Parties: Ivan McLAUGHLIN and Timothy Stanley, Plaintiffs, v. Daniel BAILEY, in his individual and official capacity as Sheriff of Mecklenburg County, and Ohio Casualty Insurance Company, Defendants.

240 N.C.App. 159

771 S.E.2d 570

Ivan McLAUGHLIN and Timothy Stanley, Plaintiffs,

v.Daniel BAILEY, in his individual and official capacity as Sheriff of Mecklenburg County, and Ohio Casualty Insurance Company, Defendants.

No. COA14–446.

Court of Appeals of North Carolina.

April 7, 2015.

Kennedy, Kennedy, Kennedy, and Kennedy, LLP, Winston–Salem, by Harold L. Kennedy, III, and Harvey L. Kennedy, for plaintiff-appellants.

Womble, Carlyle, Sandridge and Rice, LLP, Charlotte, by Sean F. Perrin, for defendant-appellee.

Edmond W. Caldwell, Jr., for amicus curiaeNorth Carolina Sheriffs' Association.

STEELMAN, Judge.

The employees of a county sheriff, including deputies and others hired by the sheriff, are directly employed by the sheriff and not by the county or by a county department.Sheriff's employees are not "county employees" as defined in N.C. Gen.Stat. § 153A–99 and are not entitled to the protections of that statute.As a sworn deputy sheriff, plaintiff Stanley could be discharged based upon political conduct without violating free speech rights under the North Carolina Constitution.Where defendant produced evidence that plaintiff McLaughlin was discharged for failure to comply with sheriff's department rules and policies, and McLaughlin failed to produce specific evidence that his discharge was politically motivated, the trial court properly dismissed his claim for violation of his rights to free speech under the North Carolina Constitution.

I.Factual and Procedural Background

Ivan McLaughlin and Timothy Stanley(plaintiffs) were employed by former Mecklenburg County SheriffDaniel Bailey(defendant, with Ohio Casualty Insurance Company, collectively, defendants).Stanley was hired in 1998 as a detention officer at the Mecklenburg County jail, and as a deputy sheriff in 2008.He worked primarily as a courtroom bailiff.McLaughlin was hired as a juvenile counselor at the Gatling Juvenile Detention Center in 1998, and was not a sworn law enforcement officer.When the Mecklenburg County Sheriff's Department assumed responsibility for Gatling, McLaughlin became a detention counselor for youthful offenders housed in Mecklenburg County's Jail North.

In June 2009defendant, a registered Democrat, sent a letter to approximately 1,350 of his employees, announcing his candidacy for reelection and stating that he would appreciate campaign contributions.

Plaintiffs, who were Republicans, did not contribute to defendant's reelection campaign or attend a fund-raising barbeque sponsored by the campaign.Defendant was reelected in November 2010.

Stanley received favorable performance reviews between 2007 and 2010.However, shortly before the election, Stanley's supervisor reported to defendant that Stanley had been disruptive during the morning briefings by talking in the back of the room and making remarks expressing a preference for defendant's opponent in the election.On 30 November 2011 Stanley was terminated from his employment as a deputy sheriff.Defendant testified in his deposition that Stanley was terminated for being disruptive.

McLaughlin also received favorable performance reviews for several years prior to the election.However, in August 2010 the staff at Jail North, including McLaughlin, received a memo emphasizing the importance of "pod tours" to verify that inmates were present and were not in distress, and warning that failure to conduct pod tours would result in termination.McLaughlin's supervisor testified in his deposition that the "purpose of a pod tour ... is to make sure that a pod officer can account for every inmate ... being alive[.]"On 19 November 2010 McLaughlin's supervisors visited Jail North and observed a number of violations of the rules for supervision of the youthful offender population, including failure to conduct pod tours.The supervisors also reviewed a videotape that showed McLaughlin committing additional violations of Sheriff's Department rules.The supervisors documented McLaughlin's violations and submitted a report to the Office of Professional Compliance, which interviewed McLaughlin on 30 November 2010.During the interview, McLaughlin conceded that he had failed to follow Sheriff's Department rules on a number of occasions.On 10 January 2011 McLaughlin received a memorandum setting forth his violations of the Sheriff's Department rules, and the resultant decision to terminate his employment.McLaughlin's termination was confirmed by the Sheriff's Department review board.

On 17 January 2012plaintiffs filed a complaint, asserting claims against defendants for wrongful termination of employment in violation of public policy, and for violation of their rights under the Constitution of North Carolina, Article 1, §§ 14and36.Plaintiffs asserted that they were terminated "for failing to make contributions to [Sheriff] Bailey's re-election campaign and for failing to volunteer to work in his campaign," and that McLaughlin was terminated based on "his Republican beliefs."Plaintiffs asserted that their termination was "in violation of [the] public policy" enunciated in N.C. Gen.Stat. § 153A–99.Defendants filed separate answers denying the material allegations of plaintiffs' complaint.On 13 June 2013defendants filed a joint motion for summary judgment on all claims.On 6 January 2014the trial court entered summary judgment in favor of defendants and dismissed plaintiffs' complaint.

Plaintiffs appealed.Although plaintiffs' complaint asserted claims against defendant in both his individual and official capacities, plaintiffs only appeal the entry of summary judgment on their claims against defendant in his official capacity.

II.Standard of Review

Under N.C. Gen.Stat. § 1A–1,Rule 56(a), summary judgment is properly entered "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law."" ‘In a motion for summary judgment, the evidence presented to the trial court must be admissible at trial, N.C.G.S. § 1A–1,Rule 56(e)[ (2013) ], and must be viewed in a light most favorable to the non-moving party.’ "Patmore v. Town of Chapel Hill N.C.,–––N.C.App. ––––, ––––, 757 S.E.2d 302, 304(quotingHowerton v. Arai Helmet, Ltd.,358 N.C. 440, 467, 597 S.E.2d 674, 692(2004)(internal citation omitted)), disc. review denied,367 N.C. 519, 758 S.E.2d 874(2014).

In a trial court's ruling on a motion for summary judgment, " ‘[a] verified complaint may be treated as an affidavit if it (1) is made on personal knowledge, (2) sets forth such facts as would be admissible in evidence, and (3) shows affirmatively that the affiant is competent to testify to the matters stated therein.’On the other hand, ‘the trial court may not consider an unverified pleading when ruling on a motion for summary judgment.’Plaintiff[s'] complaint in this case was not verified, so it could not be considered in the course of the trial court's deliberations concerning Defendants' summary judgment motion."Rankin v. Food Lion,210 N.C.App. 213, 220, 706 S.E.2d 310, 315–16(2011)(quotingMerritt, Flebotte, Wilson, Webb & Caruso, PLLC v. Hemmings,196 N.C.App. 600, 605, 676 S.E.2d 79, 83–84(2009)(internal quotation omitted), and Tew v. Brown,135 N.C.App. 763, 767, 522 S.E.2d 127, 130(1999)).

III.Termination in Violation of Public Policy

In plaintiffs' first argument, they contend that they were wrongfully terminated in violation of the public policy articulated in N.C. Gen.Stat. § 153A–99.Plaintiffs assert that they were "county employees" as defined in § 153A–99, and that their termination from employment violated this statute.We disagree.

A.Legal Principles

"In North Carolina, ‘in the absence of an employment contract for a definite period, both employer and employee are generally free to terminate their association at any time and without any reason.’ "Elliott v. Enka–Candler Fire & Rescue Dep't, Inc.,213 N.C.App. 160, 163, 713 S.E.2d 132, 135(2011)(quotingSalt v. Applied Analytical, Inc.,104 N.C.App. 652, 655, 412 S.E.2d 97, 99(1991) )."However, the employee-at-will rule is subject to certain exceptions....‘[W]hile there may be a right to terminate a contract at will for no reason, or for an arbitrary or irrational reason, there can be no right to terminate such a contract for an unlawful reason or purpose that contravenes public policy.’ "Coman v. Thomas Manufacturing Co.,325 N.C. 172, 175, 381 S.E.2d 445, 446–47(1989)(quotingSides v. Duke University,74 N.C.App. 331, 342, 328 S.E.2d 818, 826(1985), overruled in part on other grounds as stated inKurtzman v. Applied Analytical Industries, Inc.,347 N.C. 329, 493 S.E.2d 420(1997) ).

Plaintiffs argue that they were terminated in violation of the public policy set forth in N.C. Gen.Stat. § 153A–99 :

(a) The purpose of this section is to ensure that county employees are not subjected to political or partisan coercion while performing their job duties, [and] to ensure that employees are not restricted from political activities while off duty[.]... Employees shall not be restricted from affiliating with civic organizations of a partisan or political nature, nor shall employees, while off duty, be restricted from attending political meetings, or advocating and supporting the principles or policies of civic or political organizations, or supporting partisan or nonpartisan candidates of their choice in accordance with the Constitution and laws of the State and the Constitution and laws of the United States of America.

(b) Definitions.For the purposes of this section: (1)"County employee" or "employee" means any person employed by a county or any department or program thereof that is supported, in whole or in part, by county funds[.]...

"The express purpose of N.C. Gen.Stat. § 153A–99 is ‘to ensure that county employees are not subjected to political or partisan...