Truesdale v. University of North Carolina

• Citation: 371 S.E.2d 503,91 N.C.App. 186
• Decision Date: 06 September 1988
• Docket Number: No. 8721SC1218,8721SC1218
• Court: Court of Appeal of North Carolina (US)
• Parties: , 57 USLW 2211, 48 Ed. Law Rep. 1293, 3 IER Cases 1268 Tommie Jean TRUESDALE v. UNIVERSITY OF NORTH CAROLINA, Winston-Salem State University, James W. Lewis, and Robert Fenning.

Page 503

371 S.E.2d 503

91 N.C.App. 186, 57 USLW 2211, 48 Ed.

Law Rep. 1293,

3 IER Cases 1268

Tommie Jean TRUESDALE v. UNIVERSITY OF NORTH CAROLINA, Winston-Salem State University, James W. Lewis, and Robert Fenning.

No. 8721SC1218.

Court of Appeals of North Carolina.

Sept. 6, 1988.

Moore & Brown by B. Ervin Brown, II, Winston-Salem, for plaintiff-appellee.

Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. Thomas J. Ziko, Raleigh, for defendants-appellants.

SMITH, Judge.

Plaintiff instituted this action against Winston-Salem State University (WSSU) alleging that she was employed on 14 November 1984 as a campus security officer. The record discloses that at the time of plaintiff's employment she was informed that prior to becoming a permanent employee she would be a probationary employee for nine months and would be required to take a polygraph examination as part of the requirements for becoming certified as a company police officer. The Attorney General, through the North Carolina Criminal Justice Education and Training Standards Commission, had adopted administrative rules requiring that candidates for certification as company police officers take and successfully pass a polygraph examination. 12 N.C.A.C. .0201 et seq. Plaintiff was informed that if she failed to be certified as a company police officer she could still become a permanent employee if she passed the basic law enforcement officer course and was appointed a special deputy of Forsyth County. Plaintiff agreed to submit to the polygraph examination. On 29 April 1985 and 8 July 1985, plaintiff failed to appear for the scheduled polygraph examinations. She was given time off from work for the first examination. Plaintiff alleges that she refused to take the scheduled polygraph examinations after receiving information that some of the examination questions would address her sexual practices, preferences and partners. On 31 July 1985, defendant notified plaintiff that her employment would be terminated effective 13 August 1985 for insubordination arising out of her refusal to take the polygraph examination.

Plaintiff alleged in her first claim for relief that WSSU violated her rights as guaranteed by the Fifth, Ninth and Fourteenth Amendments to the United States Constitution and that defendant's actions violated 42 U.S.C. Section 1983. Plaintiff alleged in her second claim for relief that WSSU's acts constituted an unlawful attempt to administer a polygraph examination in violation of 12 N.C.A.C. .0304(a)(1). During oral argument in this court, plaintiff's counsel abandoned this second claim for relief. Plaintiff requested reinstatement to her position with back salary and restoration of all benefits.

WSSU filed an answer which denied the material allegations of plaintiff's complaint. In addition, defendant alleged that: the complaint fails to state a claim upon which relief could be granted and should be dismissed pursuant to G.S. 1A-1, Rule 12(b)(6); WSSU is immune from suit under the doctrine of sovereign immunity; WSSU is not a "person" subject to suit under 42 U.S.C. Section 1983; and plaintiff's acceptance of probationary employment constituted a waiver of any rights she might have had to refuse to take the polygraph examination.

On 21 October 1986, plaintiff filed a motion for summary judgment. Thereafter, on 28 August 1987, plaintiff filed an amended complaint naming as additional defendants the University of North Carolina (UNC); Robert Fenning (Fenning), Vice Chancellor for Business Affairs at WSSU; and James W. Lewis (Lewis), Director of Campus Police at WSSU. The material allegations of the amended complaint were essentially the same as contained in plaintiff's initial complaint. Defendants filed an answer incorporating the denials and defenses alleged in the original answer. On 15 September 1987, defendants filed a motion for summary judgment. Plaintiff and defendants filed affidavits, exhibits and depositions supporting their respective motions for summary judgment. On 19 October 1987, the trial court granted plaintiff's motion for summary judgment and ordered reinstatement with back wages. In granting plaintiff's motion, the trial court concluded that: plaintiff's termination for refusal to submit to the polygraph examination violated her rights as guaranteed by the Fifth, Ninth and Fourteenth Amendments to the United States Constitution and Article 1, Section 19 of the North Carolina Constitution as well as 42 U.S.C. Section 1983; the polygraph examination failed to comply with the requirements of Warren v. City of Asheville, 74 N.C.App. 402, 328 S.E.2d 859, disc. rev. denied, 314 N.C. 336, 333 S.E.2d 496 (1985); and the polygraph requirement for company police officer certification was without statutory authorization. Defendants appeal assigning as error the court's granting of summary judgment in plaintiff's favor in that (1) there is no constitutional prohibition against the use of the polygraph examination in conducting background investigations of prospective law enforcement officers; (2) plaintiff has alleged no claim for relief under the North Carolina Constitution; (3) plaintiff's discharge did not violate her right to privacy or her privilege against self-incrimination; (4) there is statutory authority for requiring a polygraph examination in this instance; and (5) the trial court had no authority to order defendants to pay plaintiff's back wages. Additionally, defendants assign error to the trial court's denial of their motion for summary judgment.

We note that the record before this court contains no order permitting plaintiff to file her amended complaint. A plaintiff may amend a complaint once as a matter of right at any time before a responsive pleading is served. G.S. 1A-1, Rule 15(a). Thereafter, the rule requires leave of the court to file an amended complaint. Plaintiff's amended complaint was filed some thirteen months after defendant's answer was served. Though we are unable to determine from the record that the court granted leave to file the amended complaint, we choose to address the merits of this case "[t]o prevent manifest injustice." App.R. 2.

We first address defendants' assignments of error to the trial court's conclusions that the rule in question was adopted without statutory authority and is thus invalid, that the proposed polygraph examination would not have met the requirements of Warren v. City of Asheville, and that the polygraph examination violates Article I, sec. 19 of the North Carolina Constitution. Neither the complaint nor the amended complaint present these issues. In Moody v. Kersey, 270 N.C. 614, 155 S.E.2d 215 (1967), our Supreme Court held that a "plaintiff must make out [her] case secundum allegata. There can be no recovery except on the case made by [her] pleadings." Id. at 618, 155 S.E.2d at 218 (citations omitted).

Under North Carolina's "notice theory of pleading," a trial proceeds on the issues raised by the pleadings unless the pleadings are amended. If an issue not raised by the pleadings is tried by the "implied consent" of the parties, the pleadings are deemed amended, as in a contract case in which plaintiff, without objection, presents evidence of negligence. When, however, the evidence used to support the new issue would also be relevant to support the issue raised by the pleadings, the defendant has not been put on notice of plaintiff's new or alternate theory. Therefore, defendant's failure to object does not constitute "implied consent."

Gilbert v. Thomas, 64 N.C.App. 582, 585, 307 S.E.2d 853, 855-56 (1983) (citations omitted). In the instant case, the evidence which would support the contentions that the administrative rule was adopted without statutory authorization, did not meet the requirements of Warren v. City of Asheville, and was adopted in violation of the North Carolina Constitution would also support plaintiff's allegations that defendants' actions violated plaintiff's rights as guaranteed by the United States Constitution and 42 U.S.C. Section 1983. Thus, there was no implied consent to determine the additional issues. Those portions of the trial court's judgment concluding that the administrative rule was not authorized by statute, that the proposed polygraph examination would not meet the requirements of Warren v. City of Asheville and that the rule violates the North Carolina Constitution are reversed.

Next we address the contention of defendants UNC and WSSU that the trial court erred in granting summary judgment for the plaintiff and failing to grant summary judgment for them for the reason that the State has not waived its sovereign immunity in actions brought pursuant to 42 U.S.C. Section 1983. A trial court should grant summary judgment "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." G.S. 1A-1, Rule 56(c); Kessing v. Mortgage Corp., 278 N.C. 523, 180 S.E.2d 823 (1971). If the pleadings and proof establish that no claim for relief exists, summary judgment is proper. Coleman v. Cooper, 89 N.C.App. 188, 366 S.E.2d 2, disc. rev. denied, 322 N.C. 834, 371 S.E.2d 275 (1988). In ruling on the motion, the court must consider the evidence in the light most favorable to the non-movant. Walker v. Westinghouse Electric Corp., 77 N.C.App. 253, 335 S.E.2d 79 (1985), disc. rev. denied, 315 N.C. 597, 341 S.E.2d 39 (1986). The non-movant must be given all favorable inferences which may reasonably be drawn from the facts proffered. English v. Realty Corp., 41 N.C.App. 1, 254 S.E.2d 223, disc. rev. denied, 297 N.C. 609, 257 S.E.2d 217 (1979); Whitley v. Cubberly, 24 N.C.App. 204, 210 S.E.2d 289 (1974). Therefore, any documents presented which support the movant's motion must be strictly scrutinized while the non-movant's papers are regarded with...