Newberne v. Dept. of Crime Control

• Decision Date: 19 August 2005
• Docket Number: No. 75A05.,75A05.
• Court: North Carolina Supreme Court
• Parties: Reginald NEWBERNE v. DEPARTMENT OF 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, C.E. Moody, in his official capacity as Director of Internal Affairs for the 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.

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618 S.E.2d 201

Reginald NEWBERNE v. DEPARTMENT OF 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, C.E. Moody, in his official capacity as Director of Internal Affairs for the 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.

No. 75A05.

Supreme Court of North Carolina.

August 19, 2005.

COPYRIGHT MATERIAL OMITTED

Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of the Court of Appeals, 168 N.C.App. 87, 606 S.E.2d 742 (2005), affirming an order entered on 29 January 2003 by Judge Henry H. Hight, Jr. in Superior Court, Wake County. Heard in the Supreme Court 18 May 2005.

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

Roy Cooper, Attorney General, by Donald K. Phillips, Assistant Attorney General, for defendant-appellees.

Womble Carlyle Sandridge & Rice, PLLC, by Mark A. Davis, for North Carolina Association of County Commissioners, amicus curiae.

The McGuinness Law Firm, by J. Michael McGuinness, for North Carolina Troopers Association, amicus curiae.

Ferguson Stein Chambers Gresham & Sumter, PA, by Luke Largess, for North Carolina Academy of Trial Lawyers, and Shelagh Rebecca Kenney for American Civil Liberties Union of North Carolina Legal Foundation, amici curiae.

Thomas A. Harris, General Counsel, for State Employees Association of North Carolina, Inc., amicus curiae.

MARTIN, Justice.

On 9 April 2002, plaintiff Trooper Reginald Newberne filed suit against the named institutional and individual defendants, alleging that he was wrongfully terminated from his employment as a law enforcement officer with the State Highway Patrol in violation of the North Carolina Whistleblower Act, N.C.G.S. § 126-84 to -88. Defendants filed a motion to dismiss pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure, which the trial court allowed in an order filed 29 January 2003. A divided panel of the Court of Appeals affirmed, Newberne v. Crime Control, 168 N.C.App. 87, 606 S.E.2d 742 (2005), and plaintiff appealed as a matter of right. See N.C.G.S. § 7A-30(2) (2003). We reverse.

A motion to dismiss under N.C. R. Civ. P. 12(b)(6) "is the usual and proper method of testing the legal sufficiency of the complaint." Sutton v. Duke, 277 N.C. 94, 98, 176 S.E.2d 161, 163 (1970). In reviewing a trial court's Rule 12(b)(6) dismissal, the appellate court must inquire "`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.'" Meyer v. Walls, 347 N.C. 97, 111, 489 S.E.2d 880, 888 (1997) (citations omitted); see also Isenhour v. Hutto, 350 N.C. 601, 604-05, 517 S.E.2d 121, 124 (1999). "Rule 12(b)(6) `generally precludes dismissal except in those instances where the face of the complaint discloses some insurmountable bar to recovery.'" Energy Investors Fund, L.P. v. Metric Constructors, Inc., 351 N.C. 331, 337, 525 S.E.2d 441, 445 (2000) (quoting Sutton, 277 N.C. at 102, 176 S.E.2d at 166 (citation omitted)); cf. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80, 84 (1957). Dismissal is proper, however, "when one of the following three conditions is satisfied: (1) the complaint on its face reveals that no law supports the plaintiff's claim; (2) the complaint on its face reveals the absence of facts sufficient to make a good claim; or (3) the complaint discloses some fact that necessarily defeats the plaintiff's claim." Wood v. Guilford Cty., 355 N.C. 161, 166, 558 S.E.2d 490, 494 (2002) (citing Oates v. JAG, Inc., 314 N.C. 276, 278, 333 S.E.2d 222, 224 (1985)); see also McAllister v. Khie Sem Ha, 347 N.C. 638, 641-42, 496 S.E.2d 577, 580-81 (1998) (citing Burgess v. Your House of Raleigh, Inc., 326 N.C. 205, 209, 388 S.E.2d 134, 136 (1990)).

In applying this standard of review, we treat the allegations in plaintiff's complaint as true: From November 1989 until his termination on 10 April 2001, the North Carolina Department of Crime Control and Public Safety (the Department) employed plaintiff as a sworn law enforcement officer in the State Highway Patrol (SHP). On 14 May 2000 at approximately 12:30 a.m., plaintiff arrived at a crime scene shortly after the arrest of Owen Jackson Nichols on suspicion of driving while impaired. Plaintiff did not directly participate in or witness Nichols's apprehension or arrest, which was effectuated by SHP Troopers B.O. Johnson, P.A. Collins, and J.R. Edwards.

While speaking with another trooper at the scene, plaintiff was approached by Trooper P.A. Collins. Plaintiff noticed that Trooper Collins was rubbing his hand and asked whether he had been injured. Trooper Collins replied that he had jammed his hand after hitting Owen Nichols and that Trooper Edwards had "pulled it back in place." When plaintiff advised Trooper Collins to seek medical treatment, Trooper Collins responded that he "wouldn't know what to tell the sergeant" and added that he could tell the sergeant he broke his hand during a fall. After stating once again that Trooper Collins should seek medical attention, plaintiff departed the crime scene.

Later that day, Andy Nichols, the father of Owen Nichols, filed a complaint with the Internal Affairs Section of the SHP, alleging that Troopers Johnson, Collins, and Edwards had used excessive force in the apprehension and arrest of his son. Nearly a month later, on 13 June 2000, plaintiff's supervisor, First Sergeant A.C. Combs, asked plaintiff if he had been involved in the apprehension and arrest of Owen Nichols or if he had witnessed anyone using force on Owen Nichols. Plaintiff responded that he arrived on the scene only after Nichols had been placed under arrest and that he did not witness anyone using force on Nichols. Plaintiff also reported that Trooper Collins had apparently injured his hand during the incident. At the conclusion of this conversation, First Sergeant Combs instructed plaintiff to "write what he saw" in a statement and to submit that statement before the end of plaintiff's shift.

Plaintiff became apprehensive about preparing the statement, fearing that "breaking the code of silence" and disclosing facts concerning a potential abuse of authority by another officer might subject him to retaliation by First Sergeant Combs and others within the Department and the SHP. Plaintiff therefore complied with First Sergeant Combs's request by preparing a statement, incorporated by reference in plaintiff's complaint, limited to what he literally "saw" on the night in question. Plaintiff wrote in his statement that Trooper Collins had apparently injured his hand, but did not include Trooper Collins's oral comments concerning how he had incurred that injury.

Despite having strictly followed First Sergeant Combs's instructions to write what he "saw," plaintiff remained troubled about whether he should also have included Trooper Collins's admission that he had struck Owen Nichols, notwithstanding plaintiff's fear of retaliation and reprisal. Accordingly, plaintiff sought the counsel of another trooper with the SHP, Sergeant Montgomery, in whom plaintiff confided both his fear of retaliation and his desire to "do the right thing." Shortly after soliciting and receiving Sergeant Montgomery's advice, plaintiff approached First Sergeant Combs on 20 June 2000 and told him there were "things he didn't know" about the events of 14 May 2000. First Sergeant Combs directed plaintiff to prepare an amended statement including everything he knew about the incident, and plaintiff prepared and submitted his amended statement later that day. In the amended report, which is incorporated by reference in plaintiff's complaint, plaintiff disclosed the details of his conversation with Trooper Collins at the crime scene, including Trooper Collins's alleged statements, "I hit the subject and jammed my hand" and "It just happened, I should know better."

On 15 September 2000, defendant Captain C.E. Moody, SHP Director of Internal Affairs, filed a personnel complaint against plaintiff based on information provided to him by First Sergeant Combs. The personnel complaint alleged that plaintiff had engaged in a "Serious Personal Conduct Violation" of the SHP Policy Manual's Directive No. H.1 Section VI, the so-called "Truthfulness Directive." On 10 April 2001, plaintiff was terminated from his employment with the Department and the SHP, ostensibly based on his violation of the Truthfulness Directive. Although at least some of the troopers directly involved in Owen Nichols's detention and arrest were disciplined for misconduct following an investigation into the 14 May 2000 incident, plaintiff was the only trooper whose employment was terminated.

Based on the factual allegations summarized above, plaintiff asserted a claim for damages under the North Carolina Whistleblower Act, N.C.G.S. § 126-84 to -88. In stating his claim for relief, plaintiff expressly contended that defendants "discharged [p]laintiff because [p]laintiff reported to his superiors, both verbally and in writing, information in the Amended Statement that supports a contention that the Troopers violated State or federal law, rule or regulation and exercised gross abuse of authority in the apprehension and arrest of Owen Nichols." Plaintiff further asserted that defendants "discriminated against [p]laintiff for submitting the Amended Statement" in that plaintiff's dismissal was "grossly inequitable in comparison with the treatment and/or sanctions received by [the] other Troopers who were...