Wuchte v. McNeil

• Decision Date: 15 September 1998
• Docket Number: No. COA97-840.,COA97-840.
• Citation: 505 S.E.2d 142,130 NC App. 738
• Court: North Carolina Court of Appeals
• Parties: Richard Daniel WUCHTE, Plaintiff, v. Jackie McNEIL, in his personal and official capacity as the Chief of Police of the City of Durham, and the City of Durham, Defendants.

505 S.E.2d 142

130 NC App. 738

Richard Daniel WUCHTE, Plaintiff, v. Jackie McNEIL, in his personal and official capacity as the Chief of Police of the City of Durham, and the City of Durham, Defendants.

No. COA97-840.

Court of Appeals of North Carolina.

September 15, 1998.

McSurely, Dorosin & Osment by Alan McSurely and Ashley Osment, Chapel Hill, for plaintiff-appellant.

Newsom, Graham, Hedrick & Kennon, P.A. by Joel M. Craig and Thomas H. Lee, Jr., Durham, for defendants-appellees.

LEWIS, Judge.

In this appeal plaintiff alleges that the defendants violated his rights under the Constitutions of North Carolina and the United States by dismissing him from his job as a Durham City police officer without affording him the procedures set forth in Durham City personnel policies memoranda.

Plaintiff filed a complaint in Chatham County Superior Court on 6 April 1995 alleging violations of Article I sections 1, 12, 14, 18, and 19 of the North Carolina Constitution and the Fourteenth Amendment to the United States Constitution. By consent order, the action was transferred to Durham County Superior Court. On 28 May 1997 Judge James C. Spencer, Jr. found that there was no genuine issue of material fact and granted summary judgment in favor of defendants. We affirm.

We note at the outset that plaintiff has argued only his procedural due process claims in his brief. We will not address, therefore, the other arguments that plaintiff asserted below and that fall within his one, very broad assignment of error. N.C.R.App. P. 28(b)(5).

Summary judgment is properly granted where the movant shows that there is no genuine issue as to any material fact and that he is entitled to judgment as a matter of law. N.C. Gen.Stat. § 1A-1, Rule 56(c) (1990). In the present case, plaintiff contends that there is a dispute regarding the events leading up to his dismissal. In light of our resolution of this case, these disputed facts are not material. Our inquiry, therefore, is limited to whether the trial court correctly applied the law.

The Office of the Durham City Manager issued a personnel policy memorandum entitled "Employee Grievance Procedure" in 1986, which outlined a hearing procedure for employee grievances. Similarly, in 1989, the same office issued a personnel policy memorandum entitled "Discipline," which provided, inter alia, that employees should receive counseling and coaching from their supervisors and that supervisors should confer with Human Resources prior to the initiation of a disciplinary action. Plaintiff contends defendants violated his procedural due process rights by failing to follow these procedures.

Determining whether plaintiff's procedural due process rights under the North Carolina and United States Constitutions have been violated requires a two-step analysis: plaintiff must show first that he has a protected liberty interest and only then will courts consider his contention that the process he received was inadequate. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538, 105 S.Ct. 1487, 1491, 84 L.Ed.2d 494, 501 (1985); Soles v. City of Raleigh Civil Service Comm., 345 N.C. 443, 446, 480 S.E.2d 685, 687, reh'g denied, 345 N.C. 761, 485 S.E.2d 299 (1997); see also Woods v. City of Wilmington, 125 N.C.App. 226, 230, 480 S.E.2d 429, 432 (1997) ("The `law of the land' clause [of the North Carolina Constitution] is considered `synonymous' with the Fourteenth Amendment to the United States Constitution."). The existence of a property right to continued employment must be decided under state law. See Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 2077, 48 L.Ed.2d 684, 690 (1976). Because we hold that, under North Carolina law, plaintiff did not have a protected liberty interest in continued employment with the City of Durham, it is unnecessary for us to address the sufficiency of the process he received before and after his termination.

An employee is presumed to be an employee-at-will absent a definite term of employment or a condition that the employee can be fired only "for cause." See Still v. Lance, 279 N.C. 254, 259, 182 S.E.2d 403, 406 (1971). An employee-at-will can be fired for an irrational reason, no reason, or any reason that does not violate public policy. See id. at 259, 182 S.E.2d at 406; Coman v. Thomas Manufacturing Co., 325 N.C. 172, 175, 381 S.E.2d 445, 447 (1989). As such, an employee-at-will does not have a constitutionally protected right to continued employment and does not have the benefit of the protections of procedural due process. See Howell v. Town of Carolina Beach, 106 N.C.App. 410, 417, 417 S.E.2d 277, 281 (1992).

An employee whose employment would otherwise be at-will may gain a recognizable interest in continued employment where such a right is granted by ordinance or implied contract. See id. Employee manuals or policy memoranda may form the basis of such a right if they are expressly included in the employee's employment contract, or in the case of local governments, enacted as ordinances. See id.; Trought v. Richardson, 78 N.C.App. 758, 760, 338 S.E.2d 617, 618, disc. rev. denied, 316 N.C. 557, 344 S.E.2d 18 (1986).

Plaintiff's reliance on the personnel policies discussed above as creating a right to procedural due process is misplaced. Nothing else appearing, unilaterally promulgated employee manuals or personnel memoranda do not create a property interest in continued employment. See Harris v. Duke Power Co., 319 N.C. 627, 630, 356 S.E.2d 357, 359-60 (1987), overruled on other grounds, 347 N.C. 329, 333, 493 S.E.2d 420 (1997); see also Walker v. Westinghouse Electric Corp., 77 N.C.App. 253, 259, 335 S.E.2d 79, 83-84 (1985) (noting the "strong equitable and social policy reasons militating against allowing employers to promulgate for their employees potentially misleading personnel manuals while reserving the right to deviate from them at their own caprice," but, nonetheless, stating that employers are free to disregard such provisions), disc. rev. denied, 315 N.C. 597, 341 S.E.2d 39 (1986).

Plaintiff points to Howell v. Town of Carolina Beach, 106 N.C.App. 410, 417, 417 S.E.2d 277, 281 (1992), for the proposition that Durham's personnel memoranda gave him a "reasonable expectation of continued employment within the meaning of the due process clause." Howell is distinguishable, however, from cases involving unilaterally promulgated personnel memoranda, including the present case. Of critical importance in Howell was that the manual had been adopted by the town as an ordinance. This Court compared the town's ordinance to N.C. Gen.Stat. § 126-35 (1991), which has been held to grant state employees a "reasonable expectation of employment and a property interest within the meaning of the Due Process Clause." Id. The distinction between policy memoranda and ordinances has recently been upheld by our Supreme Court. See Soles, 345 N.C. at 447, 480 S.E.2d at 687.

In the present case, the personnel memoranda upon which plaintiff relies have not been adopted by the City of Durham as an ordinance. In fact, Durham enacted an ordinance in 1991 that provides:

Sec. 14-17. Effect of administrative procedures on legal entitlements.

No property rights with regard to benefits, termination or job status shall be inferred from policy memoranda, employee handbooks or other statements of administrative procedure unless such benefits or guarantees have been specifically and explicitly included in this ordinance.

Durham Code of Ordinances, No. 9209, § 8, 4-15-91. The personnel memoranda upon which plaintiff relies do not grant him a recognizable property interest under the Due Process Clauses of the United States or North Carolina Constitutions.

Plaintiff next argues that defendant McNeil's submission of the Report of Separation to the North Carolina Department of Justice violated plaintiff's procedural due process rights.

Law enforcement agencies are required to complete a "Report of Separation" within ten days of an officer's retirement, resignation, dismissal, or death and forward it to the Criminal Justice Standards Division. See 12 N.C.A.C. § 9C.0305 (1981). In addition to administrative information, such as the officer's name and length of service, the form contains four sections: Reason for Separation, Reason, Employability, and Agency's Additional Comments. Under "Reason for Separation," defendant McNeil checked the box labeled "Dismissal." Under "Employability," defendant McNeil checked two boxes: "This agency would not consider this individual for reappointment," and "This agency would not recommend employment elsewhere as a criminal justice officer." Defendant McNeil made no comments or allegations under the sections "Reason [for dismissal]" or "Agency's Additional Comments."

Plaintiff contends that defendant McNeil's submission of this report to the Criminal Justice Standards Division without giving him an opportunity to refute the charges underlying his dismissal violated his right to procedural due process. We disagree.

In Presnell v. Pell, 298 N.C. 715, 724, 260 S.E.2d 611, 617 (1979), our Supreme Court, relying on a line of United States Supreme Court cases, held that an employee-at-will, while lacking a liberty interest in continued employment, does possess a liberty interest in his "freedom to seek further employment." In Presnell, plaintiff, a school cafeteria worker, alleged that the school principal publicly and falsely accused her of distributing alcoholic beverages to other employees. See id. at 717-18, 260 S.E.2d at 613. Plaintiff was subsequently fired without a...