Santifort v. Guy et al
Filing
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ORDER denying 26 Motion to Dismiss for Failure to State a Claim; granting in part and denying in part 12 Motion to Dismiss for Failure to State a Claim; denying 17 Motion to Dismiss for Failure to State a Claim. The Clerk of Court is DIRECTED to continue the management of this case. Signed by Senior Judge James C. Fox on 9/8/2015. (Edwards, S.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
Civil Action No. 4:14-CV-225-F
DONNA R. SANTIFORT,
Plaintiff,
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SUE GUY in her personal capacity, LEE
SMITH, in his personal capacity, JOE
GURLEY, in his personal capacity, STEVE
KEEN, in his personal capacity, and
COUNTY OF WAYNE, NORTH
CAROLINA,
Defendants.
ORDER
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Plaintiff Donna Santifort ("Santifort") sues Defendants Sue Guy, Lee Smith, Joe Gurley,
Steve Keen and County of Wayne for damages arising from her termination of employment. The
defendants have filed three motions to dismiss, all of which have been fully briefed. For the
reasons more fully stated below, the motions to dismiss are DENIED.
I. FACTUAL AND PROCEDURAL BACKGROUND
Santifort initiated this action by filing a complaint in this court on December 5, 2014
[DE-l]. She filed an Amended Complaint [DE-4] later that same day.
In the Amended
Complaint, Santifort alleges she was terminated in violation of her First Amendment rights and
wrongfully discharged in violation. of public policy. The allegations, stated in the light most
favorable to Santifort, show the following.
On July 31, 1991, Santifort was hired by the City of Goldsboro Fire Department as a full
time Emergency Medical Technician (EMT) basic. Amend. Compl. [DE-4]
~
completed and passed her required advanced level ofEMT-Intermediate. !d.~ 10.
9. In 1992, she
In October 2012, Wayne County Emergency Medical Services ("EMS") took over the
management of Goldsboro City EMS personnel.
!d.~
11. At some point prior to the official take
over, it appears that the County began facilitating the pay of EMS personnel, because Santifort
alleges that in May 2012, the County switched to a payroll system maintained by Ceridian, and
"[t]here began to be widespread unrest amongst Wayne County EMS personnel concerning
payroll issues ... ."!d.
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12. She contends that in June 2012, she began receiving emails and
phone calls from co-workers about their problems with their paychecks. !d.
~
13.
On or about September 13, 2012, Santifort received a letter from Wayne County stating
that she owed the County $2,630.68 due to an alleged overpayment in her paychecks for the
months of July and August 2012. !d.
~
14. The letter informed Santifort that the then-County
Manager, Defendant Lee Smith, had elected to forgive $200.00 of the total amount owed. !d.
Santifort and other County EMS employees addressed their issues with the payroll system and
overtime compensation to each superior in their chain of command. !d.~ 15.
On September 18, 2012, Santifort spoke at a County Commissioners meeting "on behalf
of the County's EMS workers" and addressed "the problems with the payroll system and
overtime compensation for the County's EMS workers." !d.
~
16. That same day, she received a
letter signed by Smith and Defendant Sue Guy, then the Human Resources Manager for the
County's Office of Emergency Medical Services ("OEMS"), thanking Santifort for attending the
meeting, being a representative of Wayne EMS and other employees, and for "bringing the
Commissioners information they did not know about." !d.
~
17. It is unclear from the Amended
Complaint whether "they" refers to the Commissioners, or to Guy and Smith.
On September 17, 2012, Santifort met with OEMS staff members, who were advising her
of what they and then-County Commissioner Steve Keen needed her to say at the next County
2
Commissioners meeting.
!d.~
19. At the end of the meeting, Defendant Joe Gurley told Santifort
to "crucify" Smith at the next Commissioner's meeting. !d. Santifort then became concerned that
"her desire to address the payroll and overtime compensation problems was being hijacked by
Keen, Gurley and Guy to further their desire to get Smith fired as the County Manager." !d.
Nevertheless, on October 2, 2012, Santifort again spoke at the Commissioner's meeting on
behalf of the County's EMS employees regarding the payroll system and overtime
compensation. !d.~ 20.
During this same time period, Santifort was under extreme stress from "trying to deal
with Keen, Gurley, Smith, Guy, all her co-workers, and even employess that worked for other
departments in Wayne County whom she had never met." !d.
~
22. Santifort contends these
individuals "were all calling her with their demands, concerns, fears, [and] stories of being
threatened by their supervisors if they got involved in the 'payroll issue."' !d. Santifort alleges
that this stress was compounded by a call she responded to in her job as an EMT, where the first
responders suspected a child had died. Although Santifort and the other responders learned that
no child had been injured, she maintains that the stress from the time she spent looking for the
child's body "caused her to lose sleep, lose her appetite, and amplified the stress level already
induced by the 'payroll issue.'" !d. 23.
Santifort's stress was such that she advised everyone she would not be attending the next
Commissioner's meeting on December 3, 2012. !d.
~
24. Once she arrived at work on that date,
however, she changed her mind and contacted her supervisor about attending the meeting. !d.
Her supervisor agreed and arranged for coverage for Santifort.
Santifort was not able to speak at the meeting, however, because ''the Commissioners
refused to let any County EMS employee come to the microphone to speak." !d.~ 24. Following
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the meeting, one of Santifort's co-workers fell ill in the OEMS parking lot, and Santifort held her
while another co-worker retrieved her medication. Id.
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26. While Santifort attended to her co-
worker, Defendant Guy walked by them, laughing and smirking. Id.
Santifort maintains the
stress of the "payroll issues" overcame her, and she said to Guy: "Are you happy now, you
stupid bitch, is this what you wanted?" Id.
The next day, Santifort sought medical help, and her physician wrote a note excusing her
from work for a period of 30 days, with verbal instructions to not have any contact with anyone
with the County EMS during those 30 days. Id.
~
27. Santifort delivered the note to her
supervisor that day. Id. Later that evening, the supervisor called Santifort and told her that Smith
needed Santifort to write a statement regarding what happened in the parking lot with Guy and to
be in his office at 9:30a.m. the following morning.
Santifort reported to Smith's office on December 5, 2012. When she arrived, Defendant
Gurley, Smith, another County employee Blair Tyndall, and a note-taker were present. Instead
of giving a statement, "Santifort was terminated, effective immediately, told that she was no
longer allowed on any of the County's EMS property, and told that her things would be delivered
to her." Id.
~
28. She was escorted from the office by two Wayne County Sheriff Deputies. Id.
She later received permission to retrieve her belongings from work herself, provided that her
supervisor and another Wayne County employee accompanied her the entire time. !d.
Santifort contends that the issues of payroll and overtime compensation were a matter of
public concern, as evidenced by intense Commissioner's meetings about the subjects and rapt
attention from local media outlets. Id.
~
25. She maintains that she "was used as a pawn by
Gurley, Keen, and Guy to foment public unrest and negative attitude toward Smith in the hopes
of accomplishing two things: (a) Stirring up enough backlash against the Democratically
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controlled County Commissioners to help orchestrate a Republican takeover of that body in the
November 2012 election; and (b) Thereby creating a Board of Commissioners that had the votes
to oust Smith as County Manager." Jd~ 30. She contends that as of December 5, 2012, after the
Republicans had taken over the County Commissioners, Defendants Gurley, Keen and Guy "no
longer had any need for Santifort or to foment unrest regarding the County's 'payroll issue"' and
"were looking for any reason to terminate Santifort to quell unrest on those issues." !d.
~~
32-33.
Santifort maintains that her emotional outburst toward Guy provided a pretextual reason for
termination, and the real reason was to retaliated against her for her continued advocacy for a
solution to the "payroll issue." Id
~~
34-35.
She asserts two claims under 42 U.S.C. § 1983, contending that all Defendants retaliated
against her for expressing her views on a matter of public concern and advocacy in front of the
County Commissioners, in violation of the First Amendment. She also asserts a wrongful
discharge claim against Wayne County. All of the Defendants have moved to dismiss the claims
asserted against them.
II. STANDARD OF REVIEW
Rule 8(a)(2) of the Federal Rules of Civil Procedure provide that a complaint must
contain a "short and plain statement of the claim showing that the pleader is entitled to relief."
Fed. R. Civ. P. 8(a)(2). Accordingly, a motion to dismiss for failure to state a claim under Rule
12(b)(6) tests the sufficiency of a complaint, as governed by Rule 8. See Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009); Bell At!. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In so doing, the
court assumes the truth of all facts alleged in the complaint and the existence of any fact that can
be proved, consistent with the complaint's allegations. Erickson v. Pardus, 551 U.S. 89, 94
(2007). However, the "'[f]actual allegations must be enough to raise a right to relief above the
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speculative level' and have 'enough facts to state a claim to relief that is plausible on its face."'
Wahi v. Charleston Area Med Ctr., Inc., 562 F.3d 599, 616 n.26 (4th Cir. 2009) (citing
Twombly, 550 U.S. at 555 (2007)). Moreover, although the court draws all reasonable factual
inferences in a plaintiffs favor, the court is not obligated to accept a complaint's legal
conclusions drawn from the facts. Iqbal, 556 U.S. at 678. Nor must the court accept as true
"unwarranted inferences, unreasonable conclusions, or arguments." Giarratano v. Johnson, 521
F.3d 298, 301-02 (4th Cir. 2008) (quotations omitted).
Ill. DISCUSSION
All of the Defendants have filed motions to dismiss, which have overlapping arguments.
All Defendants contend that Santifort has not stated a First Amendment retaliation claim.
Specifically, Defendants argue that Santifort's speech and petitions were not protected by the
First Amendment because they were not made in her capacity as a citizen and did not involve a
matter of public concern. Defendants Guy. and Smith also argue the claims must be dismissed
because Santifort has not adequately alleged causation, and because they are entitled to qualified
immunity.
A.
First Amendment Claims
Section 1983 "is not itself a source of substantive rights, but a method for vindicating
federal rights elsewhere conferred by those parts of the United States Constitution and federal
statutes that it describes." Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979). Thus, to state a
claim under§ 1983, a plaintiff must allege facts showing the defendant violated "a right secured
by the Constitution and laws of the United States" and that the deprivation of the right resulted
from conduct "committed by a person acting under color of law." West v. Atkins, 487 U.S. 42,
48-49 (1988). Here, the Defendants do not contest, for purposes of the motion to dismiss, the
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color of law requirement. Rather, the issue raised by the motions to dismiss is whether Santifort
has adequately alleged that Defendants deprived her of rights secured by the First Amendment.
The First Amendment provides, in relevant part, that "Congress shall make no law ...
abridging the freedom of speech ... or the right of the people ... to petition the Government for
a redress of grievances." U.S. Const. amend. I. The Fourteenth Amendment makes this
prohibition applicable to the states. See Fisher v. King, 232 F.3d 391, 396 (4th Cir. 2000). Here,
Santifort's claims implicate both the "Speech Clause" and the "Petition Clause."
As to the Speech Clause, the First Amendment protects both the freedom of speech, and
also "the right to be free from retaliation by a public official for the exercise of that right."
Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 685 (4th Cir. 2000). Thus, "[a] State cannot
condition public employment on a basis that infringes the employee's constitutionally protected
interest in freedom of expression." Connick v. Myers, 461 U.S. 138, 142 (1983). Accordingly,
"a public employer contravenes a public employee's First Amendment rights when it discharges
or 'refuses to rehire [the] employee' ... based on the exercise of that employee's free speech
rights." Ridpath v. Bd ofGovernors Marshall Univ., 447 F.3d 292, 316 (4th Cir. 2006)(quoting
Suarez Corp., 202 F.3d at 686.
Nevertheless, courts "evaluate the exercise of First Amendment rights by public
employees differently from their exercise by other citizens; we must balance the interests of an
employee who, as a citizen, comments upon matters of public concern, on the one hand, and the
interests of a governmental employer, which must maintain an effective workplace, on the
other." Durham v. Jones, 737 F.3d 291, 299 (4th Cir. 2013) (citing Connick v. Myers, 461 U.S.
138, 142 (1983)). When considering a retaliatory discharge claim, courts weigh these competing
interests by asking three questions:
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(1) whether the public employee was speaking as a citizen upon a matter of public
concern or as an employee about a matter of personal interest; (2) whether the
employee's interest in speaking upon the matter of public concern outweighed the
government's interest in providing effective and efficient services to the public;
and (3) whether the employee's protected speech was a substantial factor in the
employee's adverse employment decision.
Adams v. Trustees of the Univ. of NC.-Wilmington, 640 F.3d 550, 560-61 (4th Cir. 2011)
(quoting McVey v. Stacy, 157 F.3d 271, 277-78 (4th Cir. 1998)). The first two elements are
question of law for the court; the last element, being one of causation, is one of fact. Goldstein v.
Chestnut Ridge Volunteer Fire Co., 218 F.3d 337, 352 (4th Cir. 2000).
Similarly, a public employee may bring a retaliation claim under the Petition Clause only
ifher petition was.a matter of public concern. Borough of Duryea v. Guarnieri,_ U.S. __,
131 S. Ct. 2488,2500 (2011). The Supreme Court has explained:
If a public employee petitions as an employee on a matter of purely private
concern, the employee's First Amendment interest must give way, as it does in
speech cases. When a public employee petitions as a citizen on a matter of public
concern, the employee's First Amendment interest must be balanced against the
countervailing interest of the government in the effective and efficient
management of its internal affairs. If that balance favors the public employee, the
employee's First Amendment claim will be sustained. If the interference with the
government's operations is such that the balance favors the employer, the
employee's First Amendment claim will fail even though the petition is on a
matter of public concern.
Id
Accordingly, the threshold question under either a Petition Clause or Speech Clause
claim is whether the plaintiff was addressing a matter of public concern as a citizen. With regard
to this question, "[w]hether an employee's speech addresses a matter of public concern must be
determined by the content, form, and context of a given statement, as revealed by the whole
record." Connick, 461 U.S. at 147-48; see also Edwards v. City ofGoldsboro, 178 F.3d 231,247
(4th Cir. 1999) (explaining that whether a public employee?s speech touches on a matter of
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public concern "rests on whether the public or the community is likely to be truly concerned with
or interested in the particular expression, or whether it is more properly viewed as essentially a
private matter between employer and employee" (internal quotation marks omitted)); Stroman v.
Colleton County Sch. Dist., 981 F.2d 152, 156 (4th Cir. 1992) ("Personal grievances, complaints
about conditions of employment, or expressions about other matters of personal interest do not
constitute speech about matters of public concern that are protected by the First Amendment, but
are matters more immediately concerned with the self-interest of the speaker as employee").
Generally, speech "'involves a matter of public concern where it involves an issue of social,
political, or other interest to a community."' Durham, 737 F.3d at 300 (quoting Kirby v. City of
Elizabeth City, 388 F.3d 440, 446 (4th Cir. 2004)).
This inquiry does not turn on how
"interesting" the subject matter ofthe speech is. Vallette v. Watson, Civil Action No. 2:12cv231,
2012 WL 3026360, at *7 (E.D. Va. July 24, 2012) (citing Connick, 461 U.S. at 147-48). And
while the forum of the speech is not determinative of the question, it is relevant to the inquiry,
because "internal non-public comments are less likely to garner constitutional protection than
publicly disseminated statements." Id (citing Guarnieri, 131 S.Ct. at 2501). In total, the Fourth
Circuit has made clear that whether an employee's speech concerns a matter of public concern is
a case specific test that entails a "subtle, qualitative inquiry." Goldstein, 218 F.3d at 353.
Turning to the content of the speech and petition in this case, the court notes that the
Amended Complaint does not provide much detail as to the actual substance of Santifort's
remarks at the County Commissioner meetings, other than she spoke on behalf of Wayne
County's EMS employees on the subject of"the problems with the payroll system and overtime
compensation for County EMS workers" and "inequity being worked by the County's payroll
issues." Amend. Compl. [DE-4]
~~
16, 20. To be sure, Santifort was addressing an issue that
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affected her personally; she had been informed that she was overpaid and would have to pay
back over $2,000.00. Id
~
14. Nevertheless, even if her personal grievance prompted her
involvement, the subject matter of her statements may fairly be characterized as aiming "to bring
to light actual or potential wrongdoing or breach of public trust" on the part of the County.
Connick, 461 U.S. at 148-49; see also Stroman, 981 F.2d at 157-58 (recognizing that a teacher's
comments "could be construed as another employee unhappy with a change in a pay practice,
[but] might also reflect the complaint of a citizen concerned about budget mismanagement").
This is buttressed by the allegations that Santifort was speaking on behalf of all County EMS
employees, and not just herself, and thus cannot be said to "convey no information at all other
than the fact that a single employee is upset with the status quo." Connick, 461 U.S. at 148.
Rather, the subject matter of Santifort's statements appears to address the operations and fiscal
discipline of the County. Additionally, she alleges the Commissioners' meetings on the issues
garnered local media attention.
As to the form and context of her statements, the court recognizes that the forum of the
petition or speech is relevant to the question of whether the employee's activity relates to a
matter of public concern, Guarnieri, 131 S.Ct. at 2501, but still "the right of a public employee
'to participate as a citizen, through petitioning activity, in the democratic process . . . is not a
right to transform everyday employment disputes into matters for constitutional litigation in the
federal courts."' Brooks v. Arthur, 685 F.3d 367, 373 (4th Cir. 2012) (quoting Guarnieri, 131
S.Ct. at 2501). Here, Santifort spoke at a Board of County Commissioners meeting, and her
comments· before and during the meeting garnered enough attention that employees of other
County departments contacted her about them. Amend.Compl. [DE-4]
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~
22. The context and
form of her statements and petition, accordingly, cannot be said to be limited to an internal
employee grievance.
Based on the court's foregoing, case-specific weighing of the content, form and context
of Santifort's alleged statements and petition to the Board of County Commissioners, the court
finds that at this stage of the proceedings, she has plausibly alleged that her speech was of public
concern which implicated constitutional protection.
No Defendant contests the second factor of a retaliation claim under either the Petition or
Speech clause. Some Defendants, however, appear to contest the third element of a claim, at
least as applied to them in their individual capacities. Specifically, both Defendants Guy and
Smith argue there are no allegations showing they were responsible for her termination.
As to Smith, the court notes that as a matter of state law, he had the authority to terminate
Santifort's employment. See N.C. Gen. Stat. § 153A-82(1); see also 6A N.C. Index 4th§ 35 ("In
counties that have a county manager, the county manager is
re~ponsible
for suspending or
removing county officers, employees, and agents and is required to do so in accordance with any
general personnel rules, regulations, policies, or ordinances that the board has adopted."). This,
combined with the allegation that Santifort was terminated in Smith's office at a meeting he
convened gives rise to the plausible inference that Smith terminated her employment. Smith
makes much of the fact that Santifort has alleged that he signed a letter thanking her for her
comments, and that she alleges that his ouster was the goal of the scheme by fellow Defendants
Guy, Gurley and Keen. The fact that Smith thanked Santifort for her comments in September
does not foreclose the idea that he may have preferred her not to speak; moreover, although the
different Defendants may have had differing reasons for their desire to silence Santifort, it does
not preclude the inference that Smith terminated Santifort in retaliation for her critical remarks at
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the County Commissioner meetings. Santifort will, of course, have to gather evidence to support
these inference and contentions, but at this juncture her allegations are sufficient.
Guy similarly contends there are no factual allegations showing that she was involved in
Santifort's termination, and accordingly the claims against her in her personal capacity must be
dismissed.
Under § 1983, "it must be affirmatively shown that the official charged acted
personally in the deprivation of the plaintiffs rights." Wright v. Collins, 766 F.2d 841, 850 (4th
Cir. 1985) (internal quotation and citation omitted). It is true that unlike Smith, there is no
indication that Guy had the statutory authority to terminate Santifort's employment, nor are there
allegations that she was present for Santifort's termination. Nevertheless, Santifort alleges that
Guy, along with other defendants, used her as a pawn in a scheme to ultimately oust Smith as
manager, and that once that scheme on its way to being accomplished, they had no further need
of her. Santifort also alleges that two days after her outburst at Guy, she was terminated without
giving a statement.
In another First Amendment retaliation case, the Fourth Circuit has observed that§ 1983
"anticipates that a government official will be responsible for the natural consequences of his
actions." Tobey v. Jones, 706 F.3d 379, 386 (4th Cir. 2013). In that case, the plaintiff sued
Transportation Security Administration (TSA) agents for violating his First Amendment right to
free speech after he was arrested for peacefully protesting a TSA screening measure. The TSA
Agents lacked the official authority to arrest the plaintiff, but he alleged that the TSA Agents
"radioed for assistance" and immediately thereafter, airport police arrived and seized and
handcuffed him without further inquiry. Jd.at The district court dismissed the complaint, stating
that the compliant "doesn't say directly that [the plaintiffs arrest] was at the instruction of the
TSA." Id. at 385 (alteration in original, citation and quotation marks omitted). The Fourth Circuit
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reversed, noting that because "[i]t was an undoubtedly natural consequence of reporting a person
to the police that the person will be arrested," "it [was] logical to assume that [the TSA agents]
had a hand in his arrest." Id Like in Tobey, the court here fmds that Santifort has set forth
allegations which render it plausible that Guy had a role in the termination. Taking Santifort's
allegations as true, it is reasonable at this juncture to infer that Guy informed Smith ofSantifort's
outburst, and whatever she informed him may have led to his decision to terminate her
employment.
Moreover, given Santifort' s allegations that Guy no longer had a use for
Santifort' s public advocacy regarding the payroll and overtime issues, it is reasonable to infer
that Guy was motivated to advocate for Santifort's termination. Accordingly, the court cannot
conclude at this time that Santifort has failed to state a claim against Guy in her individual
capacity.
Finally, both Guy and Santifort contend that the claims against them in their individual
capacity must be dismissed on the basis of qualified immunity. Qualified immunity provides
government officials with immunity from suit for money damages "insofar as their conduct does
not violate clearly established statutory or constitutional rights of which a reasonable officer
would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Scott v. Harris, 550 U.S.
372, 377 (2007). Courts ruling on a claim of qualified immunity must consider two questions:
(1) "whether the facts that a plaintiff has ... shown ... make out a violation of a constitutional
right[,]" Pearson v. Callahan, 555 U.S. 223, 232 (2009); Saucier v. Katz, 533 U.S. 194, 201
(2001); Doe ex rel. Johnson v. S.C. Dep't of Soc. Servs., 597 F.3d 163, 169 (4th Cir. 2010); and
(2) "whether the right was 'clearly established' in light of the specific context ofthe case." Scott,
550 U.S. at 377; Jones v. Buchanan, 325 F.3d 520, 526 (4th Cir. 2003). Both inquiries must be
answered affirmatively before the court may deny qualified immunity. Pearson, 555 U.S. at
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232, 235-36. A court has discretion which of the two questions to analyze first. !d. at 236. The
plaintiff bears the burden of proof on the first inquiry and the defendant bears the burden of
proof on the second. Henry v. Purnell, 501 F.3d 374, 377-78 (4th Cir. 2007).
In this case, Guy and Smith argue only that Santifort has not met her burden in alleging
facts that make out a violation of a constitutional right. For the reasons the court already has
discussed, the court disagrees, and finds that the record precludes a ruling on qualified immunity
at this time. Moreover, neither Guy nor Smith proffer any argument as to why they have met
their burden in showing that the right was not clearly established at the time of the incidents
giving rise to this action. Accordingly, the motions to dismiss are denied on this basis.
B.
Wrongful Discharge Claim
The County moves to dismiss the North Carolina wrongful discharge claim asserted
against it, arguing that Santifort has failed to allege that her discharge violated any express North
Carolina policy.
Because this court has supplemental jurisdiction over this state-law claim, it applies state
substantive principles and federal procedural rules. See Erie R.R. Co. v. Tompkins, 304 U.S. 64,
78-80 (1938); Dixon v. Edwards, 290 F.3d 699, 710 (4th Cir. 2002); see also Artuso v. Vertex
Pharmaceuticals, Inc., 637 F.3d 1, 5 (1st Cir. 2011) ("Pleading standards are one thing;
substantive law is another. In a diversity case, pleading standards are a matter oflaw.").
As a general rule in North Carolina, an employee at-will has no claim for wrongful
discharge; however, the employment at-will doctrine is not without limits and "a valid claim for
relief exists for wrongful discharge of an employee at will if the contract is terminated for an
unlawful reason or a purpose that contravenes public policy." Tompkins v. Allen, 107 N.C. App.
620, 622, 421 S.E.2d 176, 178 (1992). A plaintiffbears the burden of pleading that her dismissal
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occurred for a reason that violates the public policy of North Carolina.
Salter v. E & J
Healthcare, Inc., 155 N.C. App. 685, 693, 575 S.E.2d 46, 51 (2003). "Public policy" has been
defined by North Carolina courts to mean "the principle of law which holds that no citizen can
lawfully do that which has a tendency to be injurious to the public or against the public good."
Coman v. Thomas Mfg. Co., 325 N.C. 172, 175 n.2, 381 S.E.2d 445,447 n.2 (1989). Although
there is no "laundry list of what is or is not 'injurious to the public or against the public good,' at
the very least public policy is violated when an employee is fired in contravention of express
policy declarations contained in the North Carolina General Statutes." Amos v. Oakdale Knitting
Co., 331 N.C. 348, 353, 416 S.E.2d 166, 169 (1992) (footnote omitted). Accordingly, to allege a
claim for wrongful discharge, a plaintiff should allege that a "defendant's conduct violated [an]
explicit statutory or constitutional provision, [or] allege defendant encouraged plaintiff to violate
[a] law that might result in potential harm to the public." Considine v. Compass Group USA,
Inc., 145 N.C. App. 314, 321, 551 S.E.2d 179, 184 (2001). Alternatively, a plaintiff may allege a
termination violated one of the "exceptions to [the employment at will] doctrine grounded in
considerations of public policy designed to prohibit status-based discrimination." Kurtzman v.
Applied Analytical Indus., Inc., 347 N.C. 329, 333-34, 493 S.E.2d 420, 423 (1997).
The North Carolina Supreme Court has not directly answered whether the provisions of
the United States Constitution represent the public policy of the State of North Carolina. In
Coman, where the North Carolina Supreme Court originally adopted the public policy exception
to the general rule of at-will employment, the plaintiff alleged he was fired as a long-distance
truck driver after refusing to falsify driving records, a violation of federal transportation
regulations. !d. at 173-74, 381 S.E.2d at 446. The Coman court held that the actions violated the
public policy ofNorth Carolina as set out in certain state statutes that govern highway safety and
15
regulation. Id. at 175, 381 S.E.2d at 447. In so ruling, the Coman court expressly stated:
"Although we do not bottom our opinion upon federal public policy, many courts have held that
violations of federal public policy may form the basis for a wrongful discharge action in state
courts." Id.at 178, 381 S.E.2d at 449. Thus, the North Carolina Supreme Court expressly left
open the possibility that federal public policy may form the basis of a wrongful discharge claim.
Where the North Carolina Supreme Court has not spoken, this court must predict how the
court would rule. Liberty Mut. Ins. Co. v. Triangle Indus., Inc., 957 F.2d 1153, 1156 (4th Cir.
1992). In so doing, the decisions of North Carolina' intermediate appellate court, the North
Carolina Court of Appeals," 'constitute the next best indicia of what state law is,' although such
decisions 'may be disregarded if the federal court is convinced by other persuasive data that the
highest court of the state would decide otherwise.' " I d. (quoting 19 Charles A. Wright, Arthur
R. Miller & Edward H. Cooper, Federal Practice & Procedure § 4507 (1982)). Additionally,
this court may consider "among other things, canons of construction, restatements of the law and
treatises" and "well considered dicta" of the North Carolina Supreme Court. Id. In predicting
how the Supreme Court of North Carolina would rule, the court may not create or expand North .
Carolina public policy. See, e.g., Time-Warner Entm 't-Advance/Newhouse P 'ship v. Carteret-
Craven Elec. Membership Corp., 506 F.3d 304,314-15 (4th Cir. 2007).
Since Coman, numerous lower North Carolina courts and some federal district courts
have stated that "[t]he public policy exception to the at-will employment doctrine is confined to
the express statements contained within our General Statutes or our Constitution." Whiting v.
Wolfson Casing Corp., 173 N.C. App. 218,222,618 S.E.2d 750,753 (2005); see also Warren v.
Smithfield Packing Co., No. 5:14-CV-71-D, 2014 WL 1691513, at *2 (E.D.N.C. Apr. 29, 2014)
("This court predicts that the Supreme Court ofNorth Carolina would require a plaintiff claiming
16
wrongful discharge in violation of North Carolina public policy to allege 'specific conduct by a
defendant that violated a specific expression of North Carolina public policy; in a specific North
Carolina statute or a specific provision in the North Carolina Constitution in order to state a
claim."). Indeed, in 1991, the Honorable W. Earl Britt in this district observed that "no North
Carolina case has ever held that a wrongful discharge claim can be grounded on a violation of
federal public policy." Leach v. N Telecom, Inc., 141 F.R.D. 420, 426 (E.D.N.C. 1991). This
court has not identified any cases since 1991 that contradict Judge Britt's observation.
Again, the Fourth Circuit has counseled that when sitting in diversity or exercising supplemental
jurisdiction over a claim, "a federal court 'should not create or expand [a] State's public policy."'
Time-Warner, 506 F.3d at 315 (quoting St. Paul Fire & Marine Ins. Co. v. Jacboson, 48 F.3d
778, 783 (4th Cir. 1995)). Accordingly, this court is constrained to find that a plaintiff may not
ground a wrongful discharge on a violation of federal public policy, including the policy
expressed in the Constitution.
The County's Motion to Dismiss is ALLOWED as to the
wrongful discharge claim.
IV. CONCLUSION
For the foregoing reasons, the Motions to Dismiss [DE-17, 26] are DENIED.
The
Motion to Dismiss [DE-12] filed by Defendants County of Wayne, Joe Gurley, and Steve Keen
is DENIED as to the§ 1983 claims and ALLOWED as to wrongful discharge claim. The Clerk
of Court is DIRECTED to continue the management ofthis case.
SO ORDERED. This the¥,. day of September, 2015.
esC. Fox
enior United States District Judge
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