An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling
legal authority. Citation is disfavored, but may be permitted in accordance with the
provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedur e.
NO. COA14-322
NORTH CAROLINA COURT OF APPEALS
Filed: 3 March 2015
JOHNNY L. STOUTAMIRE,
Plaintiff
v. Mecklenburg County
No. 12 CVS 942
DANIEL BAILEY, in his individual
and official capacity as Sheriff
of Mecklenburg County, and OHIO
CASUALTY INSURANCE COMPANY,
Defendants
Appeal by plaintiff from order entered 18 September 2013 by
Judge Hugh B. Lewis in Mecklenburg County Superior Court. Heard
in the Court of Appeals 10 September 2014.
Kennedy, Kennedy, Kennedy and Kennedy, LLP, by Harold L.
Kennedy, III and Harvey L. Kennedy, for plaintiff-appellant.
Womble, Carlyle, Sandridge and Rice, LLP, by Sean F. Perrin,
for defendant-appellees.
CALABRIA, Judge.
Johnny L. Stoutamire (“plaintiff”) appeals from an order
granting summary judgment in an action for wrongful discharge in
favor of Daniel Bailey (“Sheriff Bailey”) and Ohio Casualty
Insurance Company (collectively, “defendants”). We affirm.
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I. Background
Beginning in October 1981, plaintiff was employed with the
Mecklenburg County Sheriff’s Office (“MCSO”). According to
plaintiff, during his 28-year tenure, he received several
outstanding evaluations and certificates of commendation.
Plaintiff was promoted to sergeant in 2006. During 2007 and 2008,
plaintiff complained to upper management at the MCSO about the
policies regarding the drug tax seizure book and disposal of
arrestees’ clothing determined to be a biohazard risk.
Specifically, according to plaintiff, the tax seizure book was
often inaccurate and outdated, and the arrestees’ clothing, often
soiled with bodily fluids, was being destroyed without the
arrestees’ consent.
On 21 March 2009, plaintiff was assigned as the sergeant in
charge of the Arrest Processing C shift from 7 p.m. to 7 a.m. As
sergeant of this shift, plaintiff was responsible for ensuring the
safety of the arrestees and monitoring deputy sheriffs to ensure
that proper procedures were followed pertaining to arrestees.
Katherine Jackson (“Jackson”) was the captain on duty. Vincent
Denicola (“Denicola”) and Nicholas Kittles (“Kittles”) were
working as deputy sheriffs during this shift, among others.
During the early morning hours of the shift, Odell Lilly
(“Lilly”) was arrested for being intoxicated and disruptive, and
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detained by the MCSO. Lilly continued his disruptive behavior
while officers attempted to process him, and he attempted to strike
plaintiff. Plaintiff and other MCSO deputies on that shift
restrained Lilly in handcuffs, and Lilly was placed in a holding
cell so he would calm down, along with another detainee, around
2:57 a.m. At approximately 3:43 a.m., Lilly kicked the holding
cell door, slipped, and fell. A few minutes later, plaintiff and
Kittles entered Lilly’s cell, and found Lilly on the floor of the
holding cell. Lilly was examined by a nurse at 5:40 a.m. After
plaintiff’s shift ended, sometime after 7:00 a.m., Lilly received
medical attention for a broken arm.
On 16 April 2009, a Chain of Command review hearing was
conducted regarding the events surrounding Lilly’s detention. As
a result of the hearing, Sheriff Bailey terminated plaintiff’s
employment for failure to render medical aid in a timely fashion
to Lilly while he was in custody. Jackson, Denicola, and Kittles
were also terminated by the same chain of command review board as
a result of the incident.
Plaintiff filed a complaint on 17 January 2012, alleging,
inter alia, that Sheriff Bailey wrongfully discharged plaintiff in
violation of public policy by retaliating against plaintiff for
his complaints regarding the drug tax seizure book and destruction
of arrestee clothing. Defendants filed an answer on 11 April 2012
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and alleged as affirmative defenses, inter alia, that plaintiff
had failed to state a claim upon which relief could be granted and
that there were legitimate and lawful reasons for Sheriff Bailey’s
actions.
On 17 July 2013, defendants filed a motion for summary
judgment. After a hearing, the trial court entered an order on 18
September 2013 granting defendants’ motion for summary judgment
and dismissing the complaint. Plaintiff appeals.
On appeal, plaintiff argues that the trial court erred by (1)
exceeding its authority in entering summary judgment in favor of
defendants; and (2) in granting defendants’ motion for summary
judgment since genuine issues of material fact existed regarding
his wrongful discharge claim.
II. Standard of Review
“Our standard of review of an appeal from summary judgment is
de novo; such judgment is appropriate only when the record shows
that ‘there is no genuine issue as to any material fact and that
any party is entitled to a judgment as a matter of law.’” In re
Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008)
(citation omitted). “A ‘genuine issue’ is one that can be
maintained by substantial evidence.” Dobson v. Harris, 352 N.C.
77, 83, 530 S.E.2d 829, 835 (2000) (citation omitted).
III. Findings and Evidence
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As an initial matter, plaintiff argues that the trial court
exceeded its authority in entering summary judgment in favor of
defendants. Specifically, plaintiff contends that the trial court
erred by making nineteen findings of fact and by ordering the
parties to produce videotapes of the Lilly incident.
A. Findings of Fact
Summary judgment is proper if “the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that any party is entitled to a judgment as
a matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2013).
We note that ordinarily, findings of fact and
conclusions of law are not required in the
determination of a motion for summary
judgment, and if these are made, they are
disregarded on appeal. However, such findings
and conclusions do not render a summary
judgment void or voidable and may be helpful,
if the facts are not at issue and support the
judgment.
Carmichael v. Lively, ___ N.C. App. ___, ___, 762 S.E.2d 283, 287
(2014) (citations and quotation marks omitted).
In the instant case, the trial court made nineteen findings
of fact regarding the Lilly incident and the Chain of Command
review hearing. Plaintiff argues that the trial court, in doing
so, ignored all of his evidence. However, plaintiff fails to
identify any findings that were not supported by either plaintiff’s
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or Sheriff Bailey’s evidence. The trial court’s findings clarify
the court’s reasoning for granting summary judgment by setting
forth the undisputed facts as well as the conclusion of law
regarding the reason for plaintiff’s termination. Therefore, the
trial court did not err in making its findings. This argument is
overruled.
B. Videotapes
Plaintiff also contends that the trial court erred by ordering
the parties to produce videotapes illustrating the Lilly incident.
At the summary judgment hearing, the court addressed the issue of
the videotapes:
THE COURT: There was a discussion earlier
relating to the videotape or CD relating to
the events within the cell?
[Defense attorney]: Yes, sir.
THE COURT: The Plaintiff indicated that they
objected to me viewing that; however the Court
feels compelled to view that before it makes
its decision. Is that on a CD-ROM?
. . .
[Plaintiff’s attorney]: Your Honor, there’s
a dispute about the tape because the tape that
they gave us a copy of, and Mr. Stoutamire has
looked at it, he says that is not the complete
tape. He has his own tape and a copy of the
tape that he says is accurate, which is much
longer than the Defendant’s[.]
. . .
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[Defense attorney]: And I can, we can use
their tape. That’s fine.
THE COURT: I want a copy of your tapes, then.
. . . both tapes can be delivered to my office
the first of next week. I’ll reserve on this
matter until I’ve taken a look at the tapes.
[Defense attorney]: Yes, sir, thank you.
[Plaintiff’s attorney]: Okay, thank you, Your
Honor.
Despite plaintiff providing what he stated was an “accurate”
copy of the videotape to the trial court, plaintiff now claims
that the trial court’s viewing of the videotapes was erroneous
because the tapes were unauthenticated. However, because
plaintiff failed to raise any objection at the hearing regarding
the authenticity of the videotapes, plaintiff has failed to
preserve the issue for appellate review. See N.C.R. App. P.
10(a)(1) (2013) (“In order to preserve an issue for appellate
review, a party must have presented to the trial court a timely
request, objection, or motion, stating the specific grounds for
the ruling the party desired the court to make if the specific
grounds were not apparent from the context.”). Additionally, since
plaintiff failed to raise an objection to the authenticity of the
tapes before the trial court, he cannot raise it on appeal. See
Weil v. Herring, 207 N.C. 6, 10, 175 S.E. 836, 838 (1934) (“[T]he
law does not permit parties to swap horses between courts in order
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to get a better mount” on appeal.). Therefore, this argument is
without merit.
IV. Summary Judgment
Plaintiff argues that the trial court erred in entering
summary judgment in favor of defendants because he contends he was
discharged in retaliation for reporting to upper management that
the MCSO had engaged in illegal activity, and therefore he
established a prima facie cause of action for wrongful discharge.
We disagree.
A sheriff has “the exclusive right to hire, discharge, and
supervise the employees in his office.” N.C. Gen. Stat. § 153A-
103 (2013). “[P]ersonnel shall supervise prisoners closely enough
to maintain safe custody and control and to be at all times
informed of the prisoners’ general health and emergency medical
needs.” N.C. Gen. Stat. § 153A-224(a) (2013). “When an employee
has no definite term of employment, he is an employee at will and
may be discharged without reason.” Gillis v. Montgomery Cty.
Sheriff’s Dep’t, 191 N.C. App. 377, 379, 663 S.E.2d 447, 449 (2008)
(citation omitted). “The discharge of an employee at will
generally does not support an action for wrongful discharge in
this state.” Id. at 380, 663 S.E.2d at 449. However, the Supreme
Court of North Carolina created a public policy exception to the
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at-will employment doctrine in Coman v. Thomas Mfg. Co., Inc., 325
N.C. 172, 381 S.E.2d 445 (1989).
In the instant case, it is undisputed that plaintiff was an
at-will employee. However, plaintiff contends that Sheriff Bailey
terminated his employment in violation of public policy, and
therefore his case falls within the exception. In his complaint,
plaintiff alleged Sheriff Bailey terminated his employment in
retaliation for his complaints regarding the drug tax seizure book
and disposal of arrestee clothing, which plaintiff claimed was
“illegal” activity.
Plaintiff relies on Combs v. City Elec. Supply Co., 203 N.C.
App. 75, 690 S.E.2d 719 (2010), to support his argument. In Combs,
the plaintiff was employed as an accounts receivable manager with
the defendant. Id. at 77, 690 S.E.2d at 721. In February 2003,
the plaintiff met with the head supervisor of his office to
complain about a company policy that he believed amounted to
larceny and obtaining money by false pretenses from the defendant’s
customers. Id. After the meeting, the plaintiff believed he was
treated differently and that the head supervisor was “trying to
get rid of [him].” Id. Three months later, the plaintiff received
an unsatisfactory rating on a written job performance review
prepared by the head supervisor, and his salary was reduced by
$2,000. Id. at 78, 690 S.E.2d at 722. In July 2003, five months
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after the plaintiff complained about the company policy, he was
terminated from his employment. Id. In the plaintiff’s exit
interview, he was told that he failed to prepare the monthly bank
reconciliation report in a timely manner and failed to submit the
sales tax report correctly to the Department of Revenue. Id. The
plaintiff filed an action for wrongful discharge and supported his
claim by providing evidence regarding specific customer accounts,
as well as documentation of the account balances. Id. at 81-83,
690 S.E.2d at 723-24. This Court held that because the plaintiff’s
wrongful discharge claim was based upon his termination in
retaliation for reporting that the defendant obtained money from
customers by false pretenses, his claim fell within “the very
narrow public policy exception to the at-will employment
doctrine.” Id. at 83, 690 S.E.2d at 725. Plaintiff’s case is
distinguishable.
In Combs, the plaintiff provided specific evidence of illegal
activity, received an unsatisfactory job performance rating and
reduction in salary, and was terminated within months of making
his complaints. Plaintiff in the instant case, however, was unable
to provide specific evidence of illegal activity, received
exemplary job performance ratings, and was terminated more than a
year after his complaints. At plaintiff’s deposition, he was asked
whether he had heard of any circumstances where arrestees were not
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reimbursed or otherwise had money improperly taken from them.
Plaintiff responded that he had “hear[d] a lot of stuff that goes
on when an arrestee has been through the system . . . [j]ust in
lingo, I’ve heard some arrestees before say, from just knowing
them on the street, they’ve taken some money from me and I’ve never
received the money back.” Plaintiff was unable to identify any
arrestees or deputies who were involved with the alleged illegal
activity.
Plaintiff alleged in his complaint and affidavit that he was
“blocked” from receiving awards, commendations, and a promotion in
retaliation for his complaints, yet plaintiff was unable to provide
more detail than a vague change in Sheriff Bailey’s demeanor:
I could pretty much go to his office and we
could talk about anything at any time. Nobody
stopped, nobody screamed, nobody did anything.
Once I started kind of bringing out certain
things over in arrest processing, you know, it
was never – we didn’t have the same – I
wouldn’t say closeness, but we didn’t have the
same open door policy. It just didn’t happen.
Plaintiff also received the highest rating of “exemplary” in four
out of five categories and “successful” in the fifth category of
his six-month performance evaluation from 1 July 2008 to 1 January
2009. More importantly, this evaluation was after the time period
that plaintiff cites as the time that he complained to upper
management, but he was not terminated until after the Chain of
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Command review of the Lilly incident in April 2009, more than one
year after his complaints.
Although plaintiff contends that the Lilly incident was
simply a pretext for his termination, Sheriff Bailey testified in
his deposition that plaintiff was terminated for failing to provide
Lilly with medical aid in a timely manner. Since Lilly was not
examined by a nurse until approximately two hours after he fell
and was injured, Sheriff Bailey was justified in terminating
plaintiff as a result of the Lilly incident. See N.C. Gen. Stat.
§ 153A-224(a) (2013). Therefore, plaintiff is unable to connect
his allegations of retaliation to his termination. “[T]here must
be something more before us than mere speculation that an employee
was fired for an improper purpose.” Salter v. E & J Healthcare,
Inc., 155 N.C. App. 685, 694-95, 575 S.E.2d 46, 52 (2003).
Plaintiff’s vague statements provide mere speculation, with no
evidence beyond his own statements to support the alleged
retaliation. Therefore, there are no genuine issues of material
fact, and defendants are entitled to judgment as a matter of law.
V. Conclusion
The trial court did not err in making findings to clarify the
court’s reasoning for granting summary judgment by setting forth
the undisputed facts and reason for plaintiff’s termination.
Additionally, plaintiff failed to preserve the issue regarding the
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videotapes for appellate review when he failed to object to the
authenticity of the tape. Finally, there were no genuine issues
of material fact regarding the Lilly incident, and plaintiff failed
to provide substantial evidence to connect his allegations of
retaliation to his termination. Sheriff Bailey was justified in
terminating plaintiff for his failure to properly supervise Lilly
while he was in plaintiff’s care as the Arrest Processing shift
sergeant. Therefore, the trial court did not err in granting
summary judgment in defendants’ favor, and we affirm the order of
the trial court.
Affirmed.
Judges ELMORE and STEPHENS concur.
Report per Rule 30(e).