RANDLEMAN v. JOHNSON et al

Filing 17

ORDER signed by JUDGE THOMAS D. SCHROEDER on 02/17/2016. IT IS ORDERED that Sheriff Johnson's motion to dismiss 9 is GRANTED as to Randleman's wrongful discharge claim (Second Cause of Action) and DENIED as to all other claims. (Coyne, Michelle)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

JEFFREY H. RANDLEMAN,
Plaintiff,
v.
ALAMANCE COUNTY SHERIFF TERRY
S. JOHNSON, in his individual
and official capacities and
JOHN DOE CORPORATION, in its
capacity as Surety on the
Official Bond of the Sheriff
of Alamance County,
Defendants.

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1:15-cv-00159

MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, District Judge.
This is an employment action brought by Plaintiff Jeffrey H.
Randleman, a former deputy of the Alamance County Sheriff’s Office
(“ACSO”).

Before the court is the motion to dismiss of Defendant

Alamance County Sheriff Terry S. Johnson pursuant to Federal Rule
of Civil Procedure 12(b)(6).

(Doc. 9.)

For the reasons set forth

below, the motion will be granted as to Randleman’s claim of
wrongful discharge in violation of public policy and denied in all
other respects.
I.

BACKGROUND
The complaint, construed in the light most favorable to

Randleman as the non-moving party, alleges the following:

Randleman was hired by ACSO in 1990 and was employed for
twenty-two years.

(Doc. 1 at 1, 3.)

During his employment, the

United States Department of Justice (“DOJ”) subpoenaed him to
testify in a federal lawsuit alleging that Sheriff Johnson engaged
in unlawful racial profiling (id. at 1), and, on August 14, 2014,
Randleman testified at trial against Sheriff Johnson, speaking
“truthfully and provid[ing] testimony that was damaging” to the
sheriff (id. at 1, 7).

In November 2014, Sheriff Johnson ran

unopposed and was re-elected to a new term as sheriff.
9.)

(Id. at

Following his re-election, the sheriff “decided not to re-

swear Randleman in as a deputy, terminating his employment.” (Id.)
Randleman alleges that the decision not to re-swear him was based
on his “truthful testimony in the DOJ Trial.” (Id. at 10.)
Based on the above, Randleman filed the present lawsuit that
contains three claims against Sheriff Johnson.

Randleman’s first

claim alleges that the sheriff, in his official and individual
capacity, violated Randleman’s First Amendment rights under 42
U.S.C. § 1983.

(Id. at 10-12.)

The second claim alleges that

Sheriff Johnson, again in his individual and official capacity,
wrongfully discharged Randleman in violation of North Carolina
public policy.

(Id. at 12-13.)

The third claim is against Sheriff

Johnson in his official capacity only and alleges violation of
Randleman’s
Constitution.

right

to

free

speech

(Id. at 13.)
2

under

the

North

Carolina

Sheriff Johnson contends that because Randleman was not fired
but rather was simply not rehired, Randleman’s wrongful discharge
claim is doomed and his § 1983 claim must be dismissed because it
fails to allege “the existence of a constitutionally-protected
property interest in his position.”

(Doc. 10 at 6.)

Sheriff

Johnson contends that the third claim under the North Carolina
Constitution must be dismissed because Randleman has an adequate
remedy under state law.

(Id. at 12.)

In response, Randleman

maintains that he was terminated and contends that First Amendment
retaliation claims do not require a “protected property interest.”
(Doc. 11 at 8.)

In his reply brief, Sheriff Johnson argues that

Randleman is not entitled to First Amendment protection because he
is a “policymaker.” (Doc. 12 at 2-6.) Each claim will be addressed
below.
II.

ANALYSIS
A.

First Amendment Claim

Sheriff Johnson argues first that, because Randleman’s term
ended November 30, 2014, and he was thus not employed when he
sought to be re-sworn on December 1, 2014, the deputy’s First
Amendment claim must be dismissed for failure to allege a property
interest.

This is incorrect.

“[P]ossession of a property right

is immaterial to a plaintiff’s claim that he was deprived of some
valuable benefit as a result of exercising his First Amendment
rights.”

Huang v. Bd. of Governors of Univ. of N.C., 902 F.2d
3

1134, 1140 (4th Cir. 1990); accord Ridpath v. Bd. of Governors
Marshall

Univ.,

447

F.3d

292,

316

n.25

(4th

Cir.

2006).

Accordingly, Sheriff Johnson’s “fired-versus-rehired” distinction
is immaterial in the First Amendment context.

See Mount Healthy

City Sch. Dist. v. Doyle, 429 U.S. 274, 283-84 (1977) (stating
that the plaintiff could “establish a claim to reinstatement if
the decision not to rehire him was made by reason of his exercise
of constitutionally protected First Amendment freedoms”); Perry v.
Sindermann, 408 U.S. 593, 597-98 (1972).
Sheriff

Johnson

next

argues

that

dismissal

is

required

because Randleman has not alleged that he has the “special trust
and confidence” of the sheriff, which is a statutory requirement
of the oath of office as a deputy sheriff.
N.C. Gen. Stat. § 17E-2 1).)

(Doc. 10 at 9 (citing

Although the “special trust and

confidence” bestowed upon deputy sheriffs is in part why they are
considered to be policymakers in North Carolina, see Jenkins v.

1

N.C. Gen. Stat. § 17E-2(3)a. defines a “justice officer” as follows:
A person who, through the special trust and confidence of the
sheriff, has taken the oath of office prescribed by Chapter
11 of the General Statutes as a peace officer in the office
of the sheriff. This term includes “deputy sheriffs”,
“reserve deputy sheriffs”, and “special deputy sheriffs”, but
does not include clerical and support personnel not required
to take an oath. The term “special deputy” means a person
who, through appointment by the sheriff, becomes an unpaid
criminal justice officer to perform a specific act directed
by the sheriff.

Id.

4

Medford, 119 F.3d 1156, 1163-64 (4th Cir. 1997) (citing N.C. Gen.
Stat. § 17E-1), Sheriff Johnson has articulated his argument as a
necessary qualification rather than as a limit on First Amendment
protection (Doc. 10 at 8 (“Plaintiff does not allege the necessary
qualification for the administration of the oath of office as
Deputy

Sheriff.”)).

But

Randleman

need

not

allege

such

a

qualification to establish a First Amendment claim, which requires
a demonstration that the speech was constitutionally protected and
a “motivating” or “but for” cause of the employment decision.
Jurgensen v. Fairfax Cty., 745 F.2d 868, 877-878 (4th Cir. 1984).
Randleman

alleges

that

his

testimony

was

constitutionally

protected and, but for his testimony, Sheriff Johnson would not
have refused to re-swear him.

(Doc. 1 at 10 (“Defendant Johnson

would not have terminated Randleman if Randleman had committed
perjury

and

Johnson.”).)

given

testimony

more

favorable

to

defendant

These allegations are sufficient to render his claim

plausible at this preliminary stage. 2

2

In any event, Randleman has alleged sufficient facts to make plausible
the conclusion that he was meeting the expectations of his job: his
lengthy service, consistent positive performance evaluations, lack of
any legitimate reason to terminate his employment, absence of any
explanation for his not being re-sworn, ACSO’s re-swearing of all 120
other deputies, and the chief deputy’s statement he was not aware of any
problem with Randleman’s performance.
(Doc. 1 ¶¶ 48-57.)
Sheriff
Johnson is free to raise as a defense any legitimate, non-protected
reason he may claim for not re-swearing Randleman as a deputy. See Mount
Healthy City Sch. Bd. of Educ., 429 U.S. at 287 (stating that after a
plaintiff establishes that constitutionally protected speech was a
“motivating” or “but for” cause of the employment decision, the employer

5

Relying on the fired-versus-rehired distinction, the sheriff
asserts finally that, even if Randleman states a First Amendment
claim, it is barred by qualified immunity.

(Doc. 10 at 13-14.)

Specifically, Sherriff Johnson contends that, while it may have
been clearly established that he could not fire a current employee
for engaging in constitutionally protected speech, it was not
clearly established that he was legally obligated to rehire an
employee for exercising constitutionally protected speech.

(Id.)

But in Mount Healthy City School District Board of Education, 429
U.S. 274, the Supreme Court clearly established that a public
employer will violate the First Amendment by “deci[ding] not to
rehire

[an

individual]

.

.

.

by

reason

of

his

exercise

of

constitutionally protected First Amendment freedoms.”

Id. at 283-

84.

See, e.g.,

The Fourth Circuit has reiterated this rule.

Ridpath, 447 F.3d at 316.

Accordingly, Sheriff Johnson is not

entitled to qualified immunity on the basis of that argument.
Finally,

Sheriff

Johnson

argues

that

he

enjoys

broad

protection in the hiring and firing of deputies, generally and on
qualified immunity grounds, because they are policymakers, citing
Elrod v. Burns, 427 U.S. 347, 373 (1976), Branti v. Finkel, 445
U.S. 507, 518 (1979), and Jenkins.

(Doc. 12 at 1-3.)

Because the

is entitled to “show[] by the preponderance of the evidence that it would
have reached the same decision as to [the plaintiff’s] reemployment even
in the absence of the protected conduct”).

6

sheriff raised this argument for the first time in his reply brief
and it was not an issue raised by Randleman in his responsive
brief, it will not be considered at this time.

See, e.g., A

Helping Hand, LLC v. Baltimore Cty., 515 F.3d 356, 369 (4th Cir.
2008). 3
B.

State-Law Wrongful Discharge Claim

Although Sheriff Johnson’s fired-versus-rehired distinction
does not require dismissal of Randleman’s First Amendment claim,
the distinction is material for Randleman’s state-law claim for
wrongful

discharge

in

violation

of

public

policy.

Carolina, deputy sheriffs are at-will employees.

In

North

See, e.g.,

Jenkins, 119 F.3d at 1164 (citing N.C. Gen. Stat. § 153A-103(2)).
Randleman does not allege otherwise.

Nevertheless, the North

Carolina Constitution provides that sheriffs are to be elected to
four year terms, N.C. Const. art. VII, § 2, and by statute deputy
sheriffs, “act[] in the name of and with powers coterminous with
his principal, the elected sheriff,” N.C. Gen. Stat. § 17E-1
(emphasis added).

Because the powers of deputy sheriffs are

coterminous with the sheriff, who is limited by term, the term for

3

Randleman’s response brief does not mention Jenkins or the significance
of being a policymaker for First Amendment purposes. (See Doc. 11.)
Further complicating consideration of the issue, Sheriff Johnson fails
to address how the line of cases permitting the dismissal of policymakers
for certain political reasons, like Elrod, Branti, and Jenkins, extends
to non-political acts by policymakers. See Gentry v. Lowndes Cty., 337
F.3d 481, 488-89 (5th Cir. 2003). But see Bardzik v. Cty. of Orange,
635 F.3d 1138, 1150-51 (9th Cir. 2011).

7

deputy sheriffs is likewise limited, and they must be reappointed
and re-sworn at the beginning of the sheriff’s elected term.

See

N.C. Const. art. VII, § 2; N.C. Gen. Stat. § 153A-103; id. § 17E2(3)a.

Unless a sheriff’s deputy is re-sworn or reappointed, the

employment relationship automatically expires at the end of the
sheriff’s four year term.

See N.C. Gen. Stat. § 153A-103 (stating

that each sheriff “has the exclusive right to hire, discharge, and
supervise the employees of his office” and that appointed deputies
“shall serve at the pleasure” of the sheriff); id. § 162-24 (“The
sheriff may not delegate to another person the final responsibility
for discharging his official duties, but he may appoint a deputy
or

employ

others

to

assist

him

in

performing

his

official

duties.”); id. § 17E-2(3)a.; see also Young v. Bailey, No. 355PA142, 2016 WL 363556, at *1, *5 (N.C. Jan. 29, 2016) (describing the
sheriff’s authority to appoint under N.C. Gen. Stat. § 153A-103
and stating that deputy sheriffs “serve as the alter egos of the
sheriff”); Gowens v. Alamance Cty., 216 N.C. 107, 109, 3 S.E. 2d
339, 340 (1939) (stating that “[t]he right of the sheriff to
appoint

deputies”

existed

at

common

law);

cf.

El

Paso

Cty.

Sheriff’s Deputies’ Ass’n, Inc. v. Samaniego, 802 S.W.2d 727, 72829 (Tex. Ct. App. 1990) (“A deputy sheriff’s term expires when the
sheriff’s term expires.”); Brady v. Fort Bend Cty., 145 F.3d 691,
697 (5th Cir. 1998) (applying Texas law); Brett v. Jefferson Cty.,
925 F. Supp. 786, 793 (S.D. Ga. 1996) (inferring from the “nature
8

of th[e] relationship” between sheriffs and deputy sheriffs and
“the unfettered discretion granted to the sheriff” under Georgia
law that “the term of office as deputy expires with the term of
the deputy’s sheriff”), aff’d in part, vacated in part on other
grounds, 123 F.3d 1429 (11th Cir. 1997).

Accordingly, deputy

sheriffs are unique in that they are at-will employees for a term.
The tort of wrongful discharge in violation of public policy
is an exception to the general rule that at-will employees can be
discharged without reason in North Carolina.

See Coman v. Thomas

Mfg. Co., 325 N.C. 172, 175, 381 S.E.2d 445, 446 (1989).

Due to

its origins, “the tort of wrongful discharge arises only in the
context of employees at will.”

Wagoner v. Elkin City Schools’ Bd.

of Educ., 113 N.C. App. 579, 588, 440 S.E.2d 119, 125 (1994)
(citing Coman, 325 N.C. at 175, 381 S.E.2d at 445); Doyle v.
Asheville Orthapaedic Assocs., P.A., 148 N.C. App. 173, 174, 557
S.E.2d 577, 577 (2001) (same).
a

theory

of

wrongful

failure

It “does not allow recovery under
to

rehire

or

to

reinstate

an

employee.” Satterwhite v. Wal-Mart Stores E., L.P., No. 5:11cv363,
2012 WL 255347, at *3 (E.D.N.C. Jan. 26, 2012); see also Burns v.
Bd. of Trustees of Robeson Cmty. Coll., No. 7:13cv100, 2013 WL
5309750, at *7 (E.D.N.C. Sept. 19, 2013) (finding plaintiffs had
failed to state a wrongful discharge claim where “each plaintiff
was employed pursuant to a renewable contract, the contracts were
not

renewed,

and

plaintiffs

remained
9

on

the

job

until

the

expiration of their contract”); Googerdy v. N.C. Agr. & Tech. State
Univ., 386 F. Supp. 2d 618, 626 (M.D.N.C. 2005) (citing Claggett
v. Wake Forest Univ., 126 N.C. App. 602, 611, 486 S.E.2d 443, 448
(1997)); J.W. v. Johnson Cty. Bd. of Educ., No. 5:11-cv-707-D,
2012 WL 4425439, at *15 (E.D.N.C. Sept. 24, 2012) (same).
Randleman has not alleged, nor can he allege, that he was
discharged from an employee-at-will relationship.

Notwithstanding

his use of the word “terminated,” the complaint makes clear that
his term of employment expired with Sheriff Johnson’s term of
office on November 30, 2014.

(Doc. 1 at 9 (“Following his 2014

reelection, Defendant Johnson decided not to re-swear Randleman in
as a deputy, terminating his employment.”)); see N.C. Gen. Stat.
§ 163-1 (providing that a sheriff’s new term is to begin from the
first Monday in December after an election); (see also Doc. 10 at
6-7.)

Consequently, when Randleman was notified on December 1,

2014, that he would not be reappointed, there was no at-will
employment relationship from which to be discharged.
at 9.)
of

(See Doc. 1

Thus, because the tort of wrongful discharge in violation

public

policy

does

not

contemplate

failures

to

rehire

or

reappoint, Satterwhite, 2012 WL 255347, at *3, Randleman has failed
to state a claim for wrongful discharge in violation of North
Carolina public policy, and this claim will be dismissed.
Burns, 2013 WL 5309750, at *7.

10

See

C.

State Constitutional Claim

Randleman’s

third

claim

alleges

that

Sheriff

Johnson’s

failure to re-swear him violated his free speech rights under
Article I, § 14 of the North Carolina Constitution, which provides:
Freedom of speech and of the press are two of the great
bulwarks of liberty and therefore shall never be
restrained, but every person shall be held responsible
for their abuse.
The North Carolina Supreme Court has held that Article I of the
North Carolina Constitution provides a direct cause of action to
enforce the rights contained therein where there is an “absence of
an adequate state remedy.”

Corum v. Univ. of N.C., 330 N.C. 761,

782, 413 S.E.2d 276, 289 (1992) (holding that sovereign immunity
could not bar a state constitutional claim for violation of free
speech rights where no other adequate remedy at law existed); see
Petroleum Traders Corp. v. State, 190 N.C. App. 542, 547-48, 660
S.E.2d 662, 665 (2008) (“Corum articulated a waiver of sovereign
immunity specifically for claims arising under the Declaration of
Rights” (i.e., Article I of the North Carolina Constitution)).
Thus, “[t]o assert a direct constitutional claim . . . a plaintiff
must allege that no adequate state remedy exists to provide relief
for the injury.”

Copper ex. rel. Copper v. Denlinger, 363 N.C.

784, 788, 688 S.E.2d 426, 428 (2010).

The North Carolina Supreme

Court has cautioned that in making its assessment, a court “must
bow to established claims and remedies where these provide an

11

alternative

to

the

extraordinary

constitutional power.”

exercise

of

its

inherent

Corum, 330 N.C. at 784, 413 S.E.2d at 291.

An adequate state law remedy will exist where there is a cause
of action — existing at common law or created by statute — that
provides plaintiff with “the possibility of relief” for the same
injury alleged in the direct constitutional claim.

Craig ex rel.

Craig v. New Hanover Cty. Bd. of Educ. 363 N.C. 334, 340, 678
S.E.2d 351, 355 (2009); see, e.g., Estate of Fennell ex rel.
Fennell v. Stephenson, 137 N.C. App. 430, 437, 528 S.E.2d 911,
915-16 (2000) (“An adequate state remedy exists if, assuming the
plaintiff’s claim is successful, the remedy would compensate the
plaintiff for the same injury alleged in the direct constitutional
claim.”), rev’d in part on other grounds, 354 N.C. 327, 554 S.E.2d
629

(2001).

A

remedy

is

not

inadequate

simply

because

the

plaintiff “may not be able to meet his factual proof” or because
the “burden of proof on his available claim may be different.”
Edwards v. City of Concord, 827 F. Supp. 2d 517, 522-23 (M.D.N.C.
2011) (citing Rousselo v. Starling, 128 N.C. App. 439, 448-49, 495
S.E.2d 725, 731-32 (1998) (finding common law remedy was not
inadequate

“merely

because

[it]

might

require

more”

of

the

plaintiff to prove the officer (in his individual capacity) acted
with malice, corruption, or beyond the scope of his duty) and
Estate of Fennell, 137 N.C. App at 437, 528 S.E.2d at 915-16).
Craig established that Corum never guaranteed a recovery; rather,
12

it guarantees an opportunity to seek redress for the constitutional
wrong.

See Craig, 363 N.C. at 340, 678 S.E.2d at 355-56.

Indeed,

in finding the existence of a constitutional remedy, the North
Carolina Supreme Court specifically distinguished situations where
a plaintiff could not establish his common law remedy because of
the expiration of a statute of limitations.

Id.; Wilkins v. Good,

No. Civ. 4:98CV233, 1999 WL 33320960, at *8 (W.D.N.C. Jul. 29,
1999)

(dismissing

state

constitutional

claim

where

plaintiffs

failed to comply with the statute of limitations for their state
law claim).
Sheriff

Johnson

argues

that

because

Randleman

pleaded

a

wrongful discharge claim and a waiver of governmental immunity by
the purchase of a bond, 4 the deputy has an adequate remedy under
state law because he has “at least the opportunity to enter the
courthouse doors and present his claim and the possibility of

4

Unless waived through the purchase of liability insurance, governmental
immunity bars state law actions against public officials, such as
sheriffs, in their official capacity. Phillips v. Gray, 163 N.C. App.
52, 55-56, 592 S.E.2d 229, 232 (2004). A state law remedy cannot be
adequate where governmental immunity stands as an absolute bar. Craig,
363 N.C. at 340, 678 S.E.2d at 355. In addition, despite the fact that
public officials are shielded from liability in their official
capacities, “they remain personally liable for any actions which may
have been corrupt, malicious or perpetrated outside and beyond the scope
of official duties.” Beck v. City of Durham, 154 N.C. App. 221, 230,
573 S.E.2d 183, 190 (2002) (quoting Locus v. Fayetteville State Univ.,
102 N.C. App. 522, 526, 402 S.E.2d 862, 865 (1991)). Here, Randleman
alleges that Sheriff Johnson acted “maliciously, willfully, or wantonly,
or in a manner that demonstrates a reckless disregard for plaintiff’s
rights.” (Doc. ¶ 81.)

13

relief under the circumstances.”

(Doc. 10 at 12 (citing Wilkerson

v. Duke Univ., 229 N.C. App. 670, 676 748 S.E.2d 154, 159 (2013) 5.)
Beyond this conclusory contention, however, the sheriff fails to
explain how Randleman’s wrongful discharge claim provides “the
possibility of relief” where, as the sheriff contends and the court
has found, Randleman is excluded from the claim’s scope because he
was never discharged from employment.

Sheriff Johnson’s briefing

urging dismissal of this claim is simply lacking.

It addresses

none of the critical cases and fails to articulate the contours of
North Carolina case law that would be informative on the question
of

whether

Randleman’s

unviable

wrongful

discharge

claim

nevertheless provides the “possibility of relief” under North
Carolina law.

In the absence of such explanation, and because

there is no reason to believe that the presence of the state
constitutional claim will require any additional discovery outside
that of the federal constitutional claim, Sheriff Johnson’s motion
to dismiss the claim will be denied at this stage.

5

Sheriff Johnson does not offer an analysis of Wilkerson beyond quoting
its quotation of Craig.
(Doc. 10 at 12.)
But Wilkerson does not
illustrate the limits of Craig’s “possibility of relief” standard, as
two of the plaintiff’s state law claims survived summary judgment in
that case. 229 N.C. App. at 674-75, 748 S.E.2d at 158-59. The state
law claim on which the defendant was granted summary judgment failed
because of plaintiff’s inability to forecast sufficient evidence. Id.
at 675-76, 748 S.E.2d at 159. It is well-established that a plaintiff
is not without an adequate remedy merely because he cannot prove his
case. See, e.g., Edwards, 827 F. Supp. 2d at 522-23.

14

III. CONCLUSION
For the reasons stated,
IT IS THEREFORE ORDERED that Sheriff Johnson’s motion to
dismiss (Doc. 9) is GRANTED as to Randleman’s wrongful discharge
claim (Second Cause of Action) and DENIED as to all other claims.

/s/
Thomas D. Schroeder
United States District Judge
February 17, 2016

15