Newberne v. Crime Control and Public Safety, COA03-530.

• Citation: 606 S.E.2d 742, 168 NC App. 87
• Case Date: January 18, 2005
• Court: Court of Appeal of North Carolina (US)

606 S.E.2d 742
168 NC App. 87

Reginald NEWBERNE, Plaintiff-Appellant,
v.
CRIME CONTROL AND PUBLIC SAFETY, an agency of the State of North Carolina, Division of State Highway Patrol, a principal subunit of an agency of the State of North Carolina, Bryan E. Beatty, in his official capacity as Secretary of the Department of Crime Control and Public Safety, Richard W. Holden, in his official capacity as Commanding Officer of the Division of State Highway Patrol and C.E. Moody, in his official capacity as Director of Internal Affairs for Division of State Highway Patrol, and A.C. Combs, in his individual and official capacity as First Sergeant with the Division of State Highway Patrol, Defendants-Appellees

No. COA03-530.

Court of Appeals of North Carolina.

January 18, 2005.

Allen and Pinnix, P.A., by J. Heydt Philbeck, Raleigh, for plaintiff-appellant.

Attorney General Roy Cooper, by Special Deputy Attorney General Isaac T. Avery, III, and Assistant Attorney General Donald K. Phillips, for the State.

606 S.E.2d 743

McGEE, Judge

Plaintiff appeals from the trial court's dismissal on 29 January 2003 of plaintiff's complaint of retaliation made pursuant to North Carolina's Whistleblower Act, N.C. Gen.Stat. § 126-84, et. seq.

Reginald Newberne (plaintiff) was a law enforcement officer with the State Highway Patrol (SHP) in the position of trooper. While on duty on 14 May 2000, plaintiff arrived at approximately 12:30 a.m. at a crime scene where Owen Jackson Nichols (Nichols) had been apprehended and arrested. At the time of plaintiff's arrival on the scene, Nichols had already been arrested and placed in the rear seat of the patrol car of Trooper B.O. Johnson (Trooper Johnson). Plaintiff did not participate in, nor witness, the apprehension of Nichols, and was never close enough to Nichols to assess Nichols' physical condition.

606 S.E.2d 744

Trooper P.A. Collins (Trooper Collins) approached plaintiff at the scene of the arrest. Plaintiff observed that Trooper Collins was rubbing one of his hands and plaintiff asked Trooper Collins whether he had hurt it. Trooper Collins responded that he had jammed his hand after hitting Nichols and that Trooper J.R. Edwards (Trooper Edwards) had attempted to pull "[Trooper Collins' hand] back in place." Plaintiff suggested that Trooper Collins go to the hospital for treatment, but Trooper Collins responded that he would not know how to explain his injury to the sergeant. Trooper Collins speculated that he could tell the sergeant that he hurt himself in a fall. Plaintiff then left the scene of the arrest

Nichols' father filed a complaint on 14 May 2000 with the Internal Affairs section of the Division of State Highway Patrol, alleging that Troopers Johnson, Collins, and Edwards had used excessive force in arresting his son.

Plaintiff's supervisor, Sergeant A.C. Combs (Sergeant Combs), asked plaintiff on 13 June 2000 whether he had been involved in the apprehension of Nichols. Plaintiff responded that Nichols was arrested prior to plaintiff's arrival on the scene. Sergeant Combs then asked plaintiff whether he saw anyone use force on Nichols. Plaintiff responded that he had not, but that Trooper Collins had hurt his hand while at the scene of the arrest. Sergeant Combs directed plaintiff to write a report stating what he recalled seeing at the scene of Nichol's arrest, and for plaintiff to leave the report in Sergeant Comb's basket by the end of plaintiff's shift that day.

Concerned about retaliation and reprisal as a result of his report, plaintiff called Sergeant Combs on the morning of 14 June 2000 and expressed his reluctance to write the statement. Plaintiff suggested that he was "not involved" in the arrest of Nichols. Sergeant Combs again directed plaintiff to write the report regarding what he had seen on 14 May 2000.

Plaintiff submitted a statement (Statement I) later in the day on 14 June 2000. Plaintiff had limited Statement I to what plaintiff had literally seen transpire on 14 May 2000. Plaintiff noted in Statement I that Trooper Collins had apparently hurt his hand and that plaintiff suggested he receive medical attention. When plaintiff submitted Statement I to Sergeant Combs, Sergeant Combs immediately handed plaintiff a previously prepared Trooper Performance Record which cited plaintiff's failure to follow the sergeant's request to complete the report by the initial deadline and for being "argumentative" about the directive to write a report.

Plaintiff was concerned that he had not included in Statement I Trooper Collins' admission that he had hurt his hand in the apprehension of Nichols. Plaintiff thereafter sought the advice of a fellow trooper and mentor, Sergeant Montgomery. After speaking with Sergeant Montgomery, plaintiff approached Sergeant Combs on 20 June 2000 and informed him that Statement I had not included all that plaintiff had witnessed on 14 May 2000. Sergeant Combs directed plaintiff to write an amended statement including all that plaintiff knew about the events of 14 May 2000.

Plaintiff complied with Sergeant Combs' order and wrote a second statement (Statement II) in which he noted that Trooper Collins had told him that he had hurt his hand hitting Nichols and that Trooper Collins had suggested he could tell the sergeant that he had hurt his hand in a fall. Plaintiff noted in Statement II that he had failed to include this information in Statement I because he did not consider himself to be involved in the incident and did not want to get involved.

Plaintiff believed Sergeant Combs reported to Captain Moody that plaintiff was "misleading, untruthful and incomplete in his oral and written communications" with Sergeant Combs on 13 June 2000 regarding the 14 May 2000 incident. Captain Moody thereafter filed a personnel complaint on or about 15 September 2000 alleging that plaintiff had committed a Serious Personal Conduct Violation of Directive No. H.1. Section VI (Truthfulness Directive) of the Division of State Highway Patrol's policy manual. Plaintiff's employment was terminated on 10 April 2001 as a result of his failure to comply with the Truthfulness Directive.

606 S.E.2d 745

Plaintiff filed a complaint in Wake County Superior Court on 9 April 2002 alleging defendants had violated North Carolina's Whistleblower Act in terminating plaintiff's employment. Defendants filed a motion to dismiss plaintiff's complaint on the grounds that he had failed to state a claim upon which relief could be granted. Defendants' motion was granted in an order filed 29 January 2003. Plaintiff appeals

In plaintiff's first assignment of error, he argues the trial court erred in granting defendants' Rule 12(b)(6) motion to dismiss plaintiff's complaint. Plaintiff contends that his complaint properly alleged a prima facie claim pursuant to the Whistleblower Act and that plaintiff made no disclosure in his complaint that would defeat that claim. North Carolina's Whistleblower Act, N.C. Gen.Stat. § 126-84 et seq. (2003), provides that

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(a) (2003) (emphasis added). In order to present a claim under the Whistleblower Act, plaintiff must establish a prima facie case consisting of the following elements: "(1) [plaintiff] engaged in protected activity, (2) followed by an adverse employment action, and (3) 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); see also Wells v. N.C. Dep't of Corr., 152 N.C.App. 307, 567 S.E.2d 803 (2002). The explicit policy supporting the Whistleblower Act is to encourage State employees to report

verbally or in writing to their supervisor, department head, or other appropriate authority, evidence of activity by a State agency or State employee constituting:

(1) A violation of State or federal law, rule or regulation[.]

N.C. Gen.Stat. § 126-84(a)(1).

In considering a Rule 12(b)(6) motion, a trial court must determine whether, as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief may be granted under some legal theory. See N.C. Gen.Stat. § 1A-1, Rule 12(b)(6) (2003). A motion to dismiss directs the trial court to test the legal sufficiency of the complaint, not the facts which support the claim. Warren v. New Hanover County Bd. of Education, 104 N.C.App. 522, 525, 410 S.E.2d 232, 234 (1991). Specifically, the trial court is to dismiss a complaint "`"if no law exists to support the claim made, if sufficient facts to make out a good claim are absent, or if facts are disclosed which will necessarily defeat the claim."'" Plummer v. Community Gen. Hosp. of Thomasville, Inc., 155 N.C.App. 574, 576, 573 S.E.2d 596, 598 (2002) (citations omitted), disc. review denied, 357 N.C. 63, 579 S.E.2d 392 (2003).

As to the first element of a claim under the Whistleblower Act, plaintiff argues that in filing his statement, he was engaged in a "protected activity," pursuant to...