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1. Employer and Employee--sheriff's deputies--termination of employment--breach of
contract and due process claims--employment at will
The trial court did not err by granting judgment on the pleadings for defendant on
contract and due process claims by several sheriff's deputies arising from the termination of their
employment. Plaintiffs made no allegation that they were employed for a definite period of time
or that they were exempted from the rule of employment-at-will by one of the well- established
exceptions.
2. Public Officers and Employees--sheriff--termination of deputies--action in official
capacity
The trial court did not err by granting judgment on the pleadings for defendant-sheriff on
all claims in his individual capacity arising from the termination of the employment of several
deputies. Although plaintiffs contend that the complaint alleges acts outside defendant's official
duties, all of plaintiffs' allegations arise from their termination from the sheriff's department and
they admit in their complaint that the sheriff retained final authority over employment decisions,
which is given to the sheriff by statute. The terminations were within the official duties of the
defendant.
3. Civil Rights--1983 action--termination of deputies' employment
The trial court did not err in an action arising from the termination of the employment of
several sheriff's deputies by holding that defendant-sheriff was not subject to liability for
monetary damages under 42 U.S.C. 1983. Under Messick v. Catawba County, 110 N.C. App.
707 and Slade v. Vernon, 110 N.C. App. 422, no recovery is available.
4.
Constitutional Law--state--law of the land clause--sheriff's deputies--termination of
employment
The trial court did not err by granting judgment on the pleadings for defendant-sheriff on claims
under the Law of the Land Clause of the North Carolina Constitution in an action arising from
the termination of employment of several sheriff's deputies where the plaintiffs lacked the
requisite property interest in continued employment to trigger the protections afforded by the
State Constitution.
Appeal by plaintiffs from an order entered 12 March 1998 by
Judge E. Lynn Johnson in Durham County Superior Court. Heard in
the Court of Appeals 25 February 1999.
Loflin & Loflin, by Ann F. Loflin, for plaintiffs-
appellants.
Durham County Attorney's Office, by Assistant County
Attorney Simoné Frier Alston, for defendant-appellee.
WALKER, Judge.
At the time of the commencement of this action, the five
plaintiffs were former employees of the Durham County Sheriff's
Department. Each had been terminated by defendant during the
months of May and July 1993. All five plaintiffs brought claims
seeking injunctive relief and monetary damages for breach of
contract deriving from General Order 2.6, which provided for the
right to appeal a termination to the Termination Review Board.
The General Orders was a set of policies and instructions
promulgated by the defendant sheriff as guidelines for the
department. The plaintiffs also made claims for denial of due
process under the Fourteenth Amendment to the United States
Constitution, violation of 42 U.S.C. § 1983, and violation of
Art. I, section 19 of the North Carolina Constitution arising out
of their terminations. Plaintiffs Ferrell and Parrish brought
additional claims of sexual discrimination under the Fourteenth
Amendment to the United States Constitution, 42 U.S.C. §§ 1981a
and 1983, and Art. I, sections 1 and 19 of the North Carolina
Constitution. Defendant filed an answer on 10 March 1995 and an
amended answer on 10 April 1995. In the amended answer,
defendant denied the allegations and asserted the defenses of
qualified immunity and governmental immunity. On 16 January
1998, defendant filed a motion for judgment on the pleadings
pursuant to N.C.R. Civ. P. 12(c), which the trial court granted
on 12 March 1998. Judgment on the pleadings is proper where the movant clearly
establishes that no material issue of fact remains to be resolved
and that he is entitled to judgment as a matter of law. Trust
Co. v. Elzey, 26 N.C. App. 29, 214 S.E.2d 800, cert. denied, 288
N.C. 252, 217 S.E.2d 662 (1975). All allegations in the non-
movant's pleadings except conclusions of law, legally impossible
facts, and matters not admissible as evidence are admitted by the
movant and all inferences are viewed in the light most favorable
to the non-movant. Ragsdale v. Kennedy, 286 N.C. 130, 209 S.E.2d
494 (1974). Plaintiffs argue the following assignments of
error: (1) whether the trial court erred in failing to substitute
the defendant's successor as party defendant for the purpose of
granting injunctive relief, (2) whether the trial court erred in
finding that claims were not properly made against the defendant
in his individual capacity, (3) whether the General Orders which
defendant promulgated formed an employment contract with the
plaintiffs from which they can derive injunctive and monetary
relief, (4) whether the defendant can be sued in his official
capacity under 42 U.S.C. § 1983, and (5) whether the plaintiffs
properly stated claims under provisions of the North Carolina
Constitution.
[1]Plaintiffs' first and third assignments of error are
determined by whether a contract existed from which defendants
may claim breach of contract and denial of due process rights.
The trial court held that because the complaint did not allege a
contract for a definite period, the plaintiffs were terminable at
will, and that no property rights are derived from employment-at-will which can be deprived in violation of due process.
Plaintiffs argue that the allegations in the complaint, construed
liberally in favor of the plaintiffs, state sufficient facts to
make valid claims for breach of contract and denial of due
process.
North Carolina has embraced the employment-at-will doctrine.
Kurtzman v. Applied Analytical Industries, Inc., 347 N.C. 329,
331, 493 S.E.2d 420, 422 (1997), rehearing denied, 347 N.C. 586,
502 S.E.2d 594 (1998). In the absence of a contractual agreement
establishing a definite term of employment, the relationship
between employer and employee is presumed to be terminable at
will. Soles v. City of Raleigh Civil Service Comm., 345 N.C.
443, 480 S.E.2d 685, rehearing denied, 345 N.C. 761, 485 S.E.2d
299 (1997). Furthermore, N.C. Gen. Stat. § 153A-103 provides
that a sheriff has the exclusive right to hire and discharge all
employees within his department, emphasizing the employment-at-
will nature of the employment contract within sheriffs'
departments. N.C. Gen. Stat. § 153A-103 (1991).
In their complaint, plaintiffs made the following
allegations:
9. Plaintiffs' employment at the Durham
County Sheriff's Department at all times
material hereto has been subject to a
document known as the General Orders.
11. Paragraph 13 of General Order 2.6
granted terminated employees the right to
appeal that termination of employment to a
Termination Review Board. Under General
Order 2.6, the Review Board conducts a
hearing, [and] makes a recommendation to the
Sheriff, who has the final authority toaccept or reject the recommendation.
12. The Defendant Hight, in express
violation of General Order 2.6, failed to
procure a recommendation from the Review
Board after a hearing held for each of the
Plaintiffs and further failed to make a
decision upon the evidence presented at the
Review hearing for each Defendant [sic].
(Emphasis added).
Plaintiffs make no allegation that they were employed for a
definite period of time or that they were exempted from the rule
of employment-at-will by one of the well-established exceptions.
See Kurtzman, 347 N.C. at 331, 493 S.E.2d at 422 (exceptions
include employment for a definite period, public policy
justifications, and federal and statutory exceptions). Further,
in paragraph 11, plaintiffs admit that the sheriff retained the
final authority over termination decisions. In Harris v. Duke
Power Co., 319 N.C. 627, 356 S.E.2d 357 (1987), our Supreme Court
upheld the dismissal of a claim for wrongful termination against
a former employer where the plaintiff failed to allege that the
employment contract was not terminable at will. While plaintiffs
claim that their employment was subject to the General Orders,
their claim does not withstand defendant's motion for judgment on
the pleadings in that their employment was terminable at will.
Further, one whose contract for employment is terminable at will
has no property interest in the employment which may form the
basis for a denial of due process claim. Peele v. Provident Mut.
Life Ins. Co., 90 N.C. App. 447, 451, 368 S.E.2d 892, 894-95,
disc. review denied, 323 N.C. 366, 373 S.E.2d 547 (1988). Thus,
plaintiffs' first and third assignments of error are overruled. [2]In their second assignment of error, plaintiffs contend
the trial court erred by granting judgment for the defendant on
all claims in his individual capacity. The trial court found
that the acts alleged by plaintiffs were within the official
duties of the defendant as sheriff and failed to state a claim
against him in his individual capacity. Plaintiffs argue that
Trantham v. Lane, 127 N.C. App. 304, 488 S.E.2d 625 (1997) is
distinguishable and that the complaint alleges acts outside of
defendant's official duties which establish a valid claim.
In Trantham, this Court held that the trial court erred in
failing to dismiss claims against a deputy sheriff in his
individual capacity. Id. The caption of the complaint stated
individual capacity, but the substantive allegations related
solely to actions undertaken as part of his official duties as a
sheriff's deputy. Id.
If the plaintiff fails to advance any
allegations in his or her complaint other
than those relating to a defendant's official
duties, the complaint does not state a claim
against a defendant in his or her individual
capacity, and instead, is treated as a claim
against defendant in his official capacity.
Id. at 307, 488 S.E.2d at 628.
In this case, plaintiffs Ferrell and Parrish argue that the
allegations of sexual discrimination occurred outside the scope
of defendant's official duties. However, all of plaintiffs'
allegations arise from their termination from the sheriff's
department. Plaintiffs admit in their complaint that the sheriff
retained final authority over employment decisions which the
sheriff is given by statute. See N.C. Gen. Stat. § 153A-103(1991).
Plaintiffs argue that Epps v. Duke University, 116 N.C. App.
305, 447 S.E.2d 444 (1994) requires a different result. In Epps,
this Court, in ruling on the denial of a motion to dismiss, held
that the plaintiffs had stated sufficient facts to place the
defendant on notice that he was being sued in his individual
capacity where the complaint did not specifically state the
capacity in which defendant was sued. Id. In this case, on the
basis of all the pleadings, the trial court held that although
defendant was named in his individual capacity, the claims were
within his official duties as sheriff and did not subject him to
personal liability. We agree with the trial court that the
terminations were within the official duties of the defendant,
and this assignment of error is overruled.
[3]In their fourth assignment of error, plaintiffs contend
the trial court erred by holding that the defendant was a “state
official” and thus was not subject to liability under 42 U.S.C. §
1983. Plaintiffs argue that because sheriffs are elected by the
voters of individual counties and because numerous statutes refer
to the local powers of sheriffs, they are local officials.
Plaintiffs cite Hull v. Oldham, 104 N.C. App. 29, 407 S.E.2d 611,
disc. review denied, 330 N.C. 441, 412 S.E.2d 72 (1991) as
authority for that assertion. In Hull, this Court held that
claims against a sheriff and deputies were properly instituted in
superior court and were not required to be brought before the
North Carolina Industrial Commission. Id. Here, plaintiffs'
arguments are not persuasive because the only two appellatedecisions in this State decided since Hull and dealing with
section 1983 as applied to sheriffs hold to the contrary.
In Corum v. University of North Carolina, 330 N.C. 761, 771,
413 S.E.2d 276, 282, rehearing denied, 331 N.C. 558, 418 S.E.2d
664, cert. denied, 506 U.S. 985, 121 L. Ed. 2d 431 (1992), our
Supreme Court held that when an action under 42 U.S.C. § 1983
seeking monetary damages is brought against “the State, its
agencies, and/or its officials acting in their official
capacities” in state court neither the State nor its officials
are considered “persons” within the meaning of the statute.
Thus, a claim under section 1983 cannot be made against those
entities. This rule was applied to sheriffs by this Court in
Messick v. Catawba County, 110 N.C. App. 707, 431 S.E.2d 489,
disc. review denied, 334 N.C. 621, 435 S.E.2d 336 (1993) and
Slade v. Vernon, 110 N.C. App. 422, 429 S.E.2d 744 (1993). In
Messick, the plaintiff sued the defendant sheriff claiming
section 1983 violations because of an investigation into sexual
abuse charges which were later dismissed. 110 N.C. App. at 713,
431 S.E.2d at 493. Applying Corum, this Court held that because
the plaintiff sought monetary damages, no recovery was available
against the sheriff or the county. Id. In Slade, this Court
held that a claim under section 1983 could not be maintained
against a sheriff and jailers within his department because as
“state officials” they were not “persons” within the meaning of
the statute. 110 N.C. App. at 429, 429 S.E.2d at 748. Here,
plaintiffs seek monetary damages for the alleged violations of
section 1983; however, under Messick and Slade we conclude norecovery is available. See, e.g., Corum, 330 N.C. 761, 413
S.E.2d 276; McMillian v. Monroe County, Alabama, 520 U.S. 781,
138 L. Ed. 2d 1 (1997); Will v. Michigan Dept. of State Police,
491 U.S. 58, 105 L. Ed. 2d 45 (1989). This assignment of error
is overruled.
[4]Finally, plaintiffs assign as error the trial court's
order allowing judgment on the pleadings for defendant on
plaintiffs' claims under Art. I, section 19 of the North Carolina
Constitution. Plaintiffs argue that because the trial court
granted judgment on the pleadings on all of their other claims,
they lack an adequate state remedy such that they should be
allowed to proceed directly with their claim under this State's
Constitution.
Art. I, section 19 of the North Carolina Constitution is
commonly called the Law of the Land Clause and is considered the
equivalent of the Due Process Clause of the United States
Constitution. Lorbacher v. Housing Authority of the City of
Raleigh, 127 N.C. App. 663, 674-75, 493 S.E.2d 74, 81 (1997).
Where no adequate state remedy exists by statute for a violation
of a constitutional right, redress is available through the
common law. Midgett v. Highway Commission, 260 N.C. 241, 132
S.E.2d 599 (1963), overruled on other grounds, Lea Co. v. N.C.
Board of Transportation, 308 N.C. 603, 304 S.E.2d 164 (1983).
Thus, a direct claim under the North Carolina Constitution can be
made where no other legal remedy is available. Corum, 330 N.C.
at 782, 413 S.E.2d at 289. However, in this case, plaintiffs
lack “the requisite property interest in continued employment totrigger the protections afforded by our State Constitution.”
Lorbacher, 127 N.C. App. at 675, 493 S.E.2d at 81; see Peele, 90
N.C. App. 447, 368 S.E.2d 892. Therefore, plaintiffs are not
entitled to assert a direct due process claim under the North
Carolina Constitution and this assignment of error is overruled.
For the reasons stated, the order of the trial court is
Affirmed.
Judges JOHN and MCGEE concur.
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