Tully v. City of Wilmington

• Decision Date: 02 March 2018
• Docket Number: No. 348A16,348A16
• Citation: 370 N.C. 527,810 S.E.2d 208
• Parties: Kevin J. TULLY v. CITY OF WILMINGTON
• Court: North Carolina Supreme Court

370 N.C. 527

810 S.E.2d 208

Kevin J. TULLY

v.CITY OF WILMINGTON

No. 348A16

Supreme Court of North Carolina.

Filed March 2, 2018

Tin Fulton Walker & Owen PLLC, Charlotte, by S. Luke Largess and Cheyenne N. Chambers, for plaintiff-appellee.

Cranfill Sumner & Hartzog LLP, Raleigh, by Katie Weaver Hartzog, for defendant-appellant.

Elliot Morgan Parsonage, PLLC, Winston-Salem, by Robert M. Elliot and R. Michael Elliot, for North Carolina Advocates for Justice, amicus curiae.

Law Offices of Michael C. Byrne, Raleigh, by Michael C. Byrne, for North Carolina Fraternal Order of Police, amicus curiae.

Edelstein and Payne, Raleigh, by M. Travis Payne, for Professional Fire Fighters and Paramedics of North Carolina, amicus curiae.

McGuinness Law Firm, Elizabethtown, by J. Michael McGuinness ; and Milliken Law, by Megan Milliken, for Southern States Police Benevolent Association and North Carolina Police Benevolent Association, amici curiae.

HUDSON, Justice.

Here we address whether a police officer states a claim under the Constitution of North Carolina against his employer when that employer violates its own policy by refusing to consider his appeal regarding the validity of an examination required for a promotion. Because we conclude that Plaintiff Kevin J. Tully has adequately stated a claim that his rights under Article I, Section 1 of the North Carolina Constitution were violated by the City of Wilmington (the City), we affirm in part the decision of the Court of Appeals reversing the dismissal of his claims.

I. Factual and Procedural History

The following facts from Tully's complaint are taken as true for the purpose of analyzing the City's motion for judgment on the pleadings. The Wilmington Police Department (the Police Department) hired Tully in 2000 and promoted him to corporal in 2007. At the time this complaint was filed, Tully was a member of the violent crimes section and had investigated more than fifty homicides and served as lead investigator in at least 12 of those cases, which had a 100% clearance rate. Tully holds an associate's degree in Applied Science in Criminal Justice and Protective Services Technology and a bachelor's degree in Criminal Justice and has received his Advanced Police Certification from the North Carolina Criminal Justice Education and Training Standards Commission. He was named "Wilmington Police Officer of the Year" in 2011.

In October 2011, Tully sought a promotion to the rank of sergeant in the Police Department. He took a written examination, a required step in a multi-phase promotional process then in effect as set forth in the Police Department Policy Manual (the Policy Manual), but he did not receive a passing score.¹ Tully had based his answers on the prevailing law at the time, and, after receiving a copy of the official examination answers, he discovered that the official answers were based on outdated law. Tully filed a grievance regarding this discrepancy through the City's internal grievance process but was informed in a 3 January 2012 letter from City Manager Sterling Cheatham that "the test answers were not a grievable item." A supervisor also told Tully that "[e]ven if you are correct, there is nothing that can be done."

Directive 4.11 of the Policy Manual states that "[t]his policy establishes uniform guidelines that govern promotional procedures within the Wilmington Police Department and ensures procedures used are job-related and non-discriminatory." Police Department, City of Wilmington, Policy Manual , Directive 4.11, ¶ I, at 1 (rev. July 25, 2011). Directive 4.11 also states that the Police Department is to work with the City's Human Resources Department to

ensure that fair and professional standards are utilized for the purpose of promoting sworn police employees.... It is the objective of the City of Wilmington to provide equal promotional opportunities to all members of the Police Department based on a candidate's merit, skills, knowledge, and abilities without regard to age, race, color, sex, religion, creed, national origin, or disability.

Id. ¶ II, at 2.

Directive 4.11 explains that all examination "instruments used shall have demonstrated content and criterion validity, which is accomplished by contracting with qualified outside entities to develop the written testing instruments. Instruments will assess a candidate's knowledge, skills, and abilities as related to the promotional position." Id. ¶ III(B)(1)(c), at 3. The "Grievance and Appeals" section of Directive 4.11 provides the following:

1. Candidates may appeal any portion of the selection process. The appeal must be made consistent with the City of Wilmington Personnel Policy on Employee Grievances.

2. If practical, re-application, re-testing, re-scoring and/or re-evaluation of candidates may be required if an error in the process is substantiated.

Id. ¶ III(F), at 6.

On 30 December 2014, Tully filed a complaint in the Superior Court in New Hanover County, asserting two claims under the North Carolina Constitution² on the ground that he "never had a true opportunity to grieve his denial of promotion based on his answers to the Sergeant's test." In his first claim, Tully asserted that the City violated Article I, Section 19 of the Constitution, which states in pertinent part that "[n]o person shall be ... deprived of his life, liberty, or property, but by the law of the land." N.C. Const. art. I, § 19. Specifically, Tully's complaint asserted that he

has a property interest in his employment with the City of Wilmington and that property interest cannot be denied or impeded without due process of law.... By denying [his] promotion due to his answers on the Sergeant's test and then determining that such a reason was not grievable, the City arbitrarily and irrationally deprived [him] of property in violation of the law of the land, in violation of the North Carolina Constitution.

In his second claim, Tully asserted that the City violated his rights under Article I, Section 1 of the Constitution, which states that "[w]e hold it to be self-evident that all persons are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, the enjoyment of the fruits of their own labor, and the pursuit of happiness." Id. art. I, § 1. Specifically, Tully claimed that "[b]y denying [his] promotion due to his answers on the Sergeant's test and then determining that such a reason was not grievable, the City arbitrarily and irrationally deprived [him] of enjoyment of the fruits of his own labor, in violation of the North Carolina Constitution."

As a remedy for these alleged violations, Tully sought a judgment declaring that the City's decision to deny him a promotion based on the October 2011 Sergeant's examination was an unconstitutional "deprivation of [his] property interest in his employment" and of the "enjoyment of the fruits of his own labor." He also requested damages resulting from the City's allegedly unconstitutional actions.

After filing its answer, the City moved for judgment on the pleadings under Rule 12(c) of the North Carolina Rules of Civil Procedure. The City argued that the parties’ pleadings established that Tully did not have a property interest that could support his claims for a violation of either Section 1 or Section 19 of Article I.³ Following a hearing on 6 April 2015 before the Honorable Gary E. Trawick, the trial court granted the City's motion and dismissed all of Tully's claims with prejudice.

Tully appealed to the North Carolina Court of Appeals, which issued a divided opinion on 16 August 2016 reversing the trial court. Tully v. City of Wilmington , ––– N.C. App. ––––, 790 S.E.2d 854 (2016). The majority first clarified that Tully's claims were "not based upon an assertion that he was entitled to receive a promotion to the rank of Sergeant, but simply that he was entitled to a non-arbitrary and non-capricious promotional process " in accordance with the rules set forth in the Policy Manual, including its appeals provision. Id. at ––––, 790 S.E.2d at 858.

After acknowledging that this case presented an issue of first impression under North Carolina law and analyzing various federal and state cases relevant to the discussion, the Court of Appeals majority concluded that "it is inherently arbitrary for a government entity to establish and promulgate policies and procedures and then not only utterly fail to follow them, but further to claim that an employee subject to those policies and procedures is not entitled to challenge that failure." Id. at ––––, 790 S.E.2d at 860 (emphasis omitted). The majority also stated that " ‘irrational and arbitrary’ government actions violate the ‘fruits of their own labor’ clause." Id. at ––––, 790 S.E.2d at 858 (citing Treants Enters. v. Onslow County , 83 N.C. App. 345, 354, 350 S.E.2d 365, 371 (1986), aff'd , 320 N.C. 776, 360 S.E.2d 783 (1987) ).

In a dissenting opinion, the Honorable Wanda G. Bryant relied principally upon the distinction between the government acting in its capacity as regulator and its capacity as employer, explaining that "[b]ecause the City is acting as an employer rather than as a sovereign, and is vested with the power to manage its own internal operations, Tully's pleadings—although asserting what appears to be an unfair result in a standard process—do not state a viable constitutional claim." Id. at ––––, 790 S.E.2d at 861 (Bryant, J., dissenting). Judge Bryant noted, however, that "because our state Supreme Court has mandated that the N.C. Constitution be liberally construed, particularly those provisions which safeguard individual liberties, I would strongly urge the Supreme Court to take a close look at this issue to see whether it is one that, as currently pled, is subject to redress under our N.C. Constitution."⁴ Id. at ––––, 790 S.E.2d at 863 (citation omitted). Tully filed a timely notice of appeal to this Court.

II. Standard of Review

We review de novo a trial court's order...