Young v. Bailey

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA14-966

Filed: 21 April 2015

Mecklenburg County, No. 13 CVS 9560

TERRI YOUNG, Plaintiff,

v.

DANIEL BAILEY, in his Official Capacity as Sheriff of Mecklenburg County, and
OHIO CASUALTY INSURANCE COMPANY, Defendants.

Appeal by plaintiff from judgment entered 25 April 2014 by Judge W. Robert

Bell in Mecklenburg County Superior Court. Heard in the Court of Appeals 16

February 2015.

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.

STEELMAN, Judge.

Plaintiff, a deputy sheriff, was not a county employee as defined in N.C. Gen.

Stat. § 153A-99, and could be discharged based upon political conduct without

violating her free speech rights under the North Carolina Constitution.

I. Factual and Procedural Background

Terri Young (plaintiff) was a deputy sheriff employed by former Mecklenburg

County Sheriff Daniel Bailey (defendant, with Ohio Casualty Insurance Company,

collectively, defendants). In June 2009 defendant sent a letter to approximately 1,350
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of his employees, announcing his candidacy for reelection and stating that he would

appreciate campaign contributions. Plaintiff did not contribute to defendant’s

reelection campaign or volunteer for his campaign. Defendant was reelected in

November 2010. On 6 December 2010 plaintiff was terminated from her position.

On 23 May 2013 plaintiff filed a complaint, asserting claims against

defendants for wrongful termination of employment in violation of the public policy

under N.C. Gen. Stat. § 153A-99 and wrongful termination in violation of her rights

under the Constitution of North Carolina, Article 1, § § 14 and 36. Plaintiff alleged

that she was an “outstanding employee” between 1990 and 2007; that she was

harassed by her superior during defendant’s political campaign, and that she had

been terminated “for refusing to make contributions to [defendant’s] re-election

campaign and for refusing to volunteer to work on his campaign.” Defendants filed

answers denying the material allegations of plaintiff’s complaint and asserting the

defense of sovereign immunity. On 3 March 2014 defendants filed a joint motion for

summary judgment, asserting that there were no genuine issues of material fact

regarding plaintiff’s claim for wrongful discharge in violation of N.C. Gen. Stat. §

153A-99; that defendant was entitled to sovereign immunity on the wrongful

discharge claim up to the amount of the surety bond; and that plaintiff’s

constitutional claim was barred by the existence of an adequate state law remedy.

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(Rp 24) On 25 April 2014 the trial court granted summary judgment for defendants

and dismissed plaintiff’s complaint.

Plaintiff appeals.

II. Standard of Review

Under N.C. Gen. Stat. § 1A-1, Rule 56(a), summary judgment is properly

entered “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.” “ ‘In a

motion for summary judgment, the evidence presented to the trial court must be

admissible at trial, N.C.G.S. § 1A-1, Rule 56(e) [(2013)], and must be viewed in a light

most favorable to the non-moving party.’ ” Patmore v. Town of Chapel Hill N.C., __

N.C. App. __, __, 757 S.E.2d 302, 304 (quoting Howerton v. Arai Helmet, Ltd., 358

N.C. 440, 467, 597 S.E.2d 674, 692 (2004) (internal citation omitted)), disc. review

denied, __ N.C. __, 758 S.E.2d 874 (2014).

III. Termination in Violation of Public Policy

In plaintiff’s first argument she contends that she was wrongfully terminated

in violation of the public policy under N.C. Gen. Stat. § 153A-99. Plaintiff asserts that

she was a “county employee” as defined in § 153A-99, and that her termination from

employment was in violation of this statute. We disagree.

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Opinion of the Court

In this case, plaintiff argues that she was terminated in violation of the public

policy set forth in N.C. Gen. Stat. § 153A-99, which states that:

(a) The purpose of this section is to ensure that county
employees are not subjected to political or partisan coercion
while performing their job duties, [and] to ensure that
employees are not restricted from political activities while
off duty[.] . . .

(b) Definitions. For the purposes of this section: (1) “County
employee” or “employee” means any person employed by a
county or any department or program thereof that is
supported, in whole or in part, by county funds[.] . . .

“The express purpose of N.C. Gen. Stat. § 153A-99 is ‘to ensure that county

employees are not subjected to political or partisan coercion while performing their

job duties[.]’ . . . [I]f a county employee was fired due to his political affiliations and

activities, ‘this would contravene . . . the prohibition against political coercion in

county employment stated in N.C. Gen. Stat. § 153A-99,’ hence violating North

Carolina public policy.” Venable v. Vernon, 162 N.C. App. 702, 705-06, 592 S.E.2d 256,

258 (2004) (quoting Vereen v. Holden, 121 N.C. App. 779, 784, 468 S.E.2d 471, 474

(1996) (internal citations omitted)).

Plaintiff argues that she was an employee of the “sheriff’s department,” which

is supported by county funds, and thus is entitled to the protections of N.C. Gen. Stat.

§ 153A-99. In support of this contention, plaintiff relies primarily on a 1998 advisory

opinion of the North Carolina Attorney General, which opined that the statute was

“applicable to elected officials of counties,” and on a case cited in the advisory opinion,

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Carter v. Good, 951 F. Supp. 1235 (W.D.N.C. 1996), reversed and remanded, 145 F.3d

1323 (4th Cir. N.C. 1998) (unpublished). Plaintiff also asserts that a close analysis of

the word “thereof” in the statute tends to show that she was a county employee.

However, we recently addressed these same arguments in McLaughlin v. Bailey, __

N.C. App. __, __ S.E.2d __ (2015), a case that is identical to the instant case. In

McLaughlin, the plaintiffs were a deputy and another employee of the Mecklenburg

County Sheriff who were discharged by the sheriff, the same defendant as in the

instant case. We held that:

The employees of a county sheriff, including deputies and
others hired by the sheriff, are directly employed by the
sheriff and not by the county or by a county department.
Sheriff’s employees are not “county employees” as defined
in N.C. Gen. Stat. § 153A-99 and are not entitled to the
protections of that statute.

McLaughlin, __ N.C. App. at __, __ S.E.2d at __. In addition, the scope of N.C. Gen.

Stat. § 153A-99 was recently addressed by this Court in Sims-Campbell v. Welch, __

N.C. App. __, __, __ S.E.2d __, __ (3 March 2015). In Sims-Campbell, the plaintiff, an

assistant register of deeds, argued that her firing violated N.C. Gen. Stat. § 153A-99:

Sims-Campbell also argues that [her firing] . . . violated
Section 153A-99 of the General Statutes[.] . . . This
argument fails because an assistant register of deeds is not
a county employee. . . . We again find guidance in our cases
dealing with the office of sheriff. In a series of cases, this
court has held that sheriff's deputies . . . are not county
employees, but rather employees of the sheriff. . . . In light
of the statute’s plain language and our analogous case law
concerning deputy sheriffs, we conclude that an assistant

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register of deeds . . . is not a "county employee" within the
meaning of N.C. Gen. Stat. § 153A-99(b)(1).

Sims-Campbell, __ N.C. App. at __, __ S.E.2d at __ (emphasis added). McLaughlin is

indistinguishable from the present case and controls the outcome. “Where a panel of

the Court of Appeals has decided the same issue, albeit in a different case, a

subsequent panel of the same court is bound by that precedent, unless it has been

overturned by a higher court.” In re Appeal of Civil Penalty, 324 N.C. 373, 384, 379

S.E.2d 30, 37 (1989). As a deputy sheriff, plaintiff was not a county employee within

the meaning of N.C. Gen. Stat. § 153A-99, and cannot assert a claim for wrongful

termination in violation of that statute. This argument is without merit.

IV. Violation of State Constitutional Rights

Plaintiff next argues that her termination violated her right to freedom of

speech guaranteed by Art. 1, § 14 of the North Carolina Constitution. We disagree,

and again conclude that plaintiff’s arguments on this issue are foreclosed by our

decision in McLaughlin.

“[T]he First Amendment generally bars the firing of public employees ‘solely

for the reason that they were not affiliated with a particular political party or

candidate,’ as such firings can impose restraints ‘on freedoms of belief and

association[.]’ ” Bland v. Roberts, 730 F.3d 368, 374 (4th Cir. 2013) (quoting Knight v.

Vernon, 214 F.3d 544, 548 (4th Cir. 2000) (internal quotation marks omitted), and

Elrod v. Burns, 427 U.S. 347, 355, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976) (plurality

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opinion)). However, “the Supreme Court in Elrod created a narrow exception ‘to give

effect to the democratic process’ by allowing patronage dismissals of those public

employees occupying policymaking positions.” Id. (quoting Jenkins v. Medford, 119

F.3d 1156, 1161 (4th Cir. 1997) (en banc).

In Jenkins we analyzed the First Amendment claims of
several North Carolina sheriff’s deputies who alleged that
the sheriff fired them for failing to support his election bid
and for supporting other candidates. . . . [W]e considered
the political role of a sheriff, the specific duties performed
by sheriff’s deputies, and the relationship between a sheriff
and his deputies as it affects the execution of the sheriff’s
policies. . . . [We] concluded “that in North Carolina, the
office of deputy sheriff is that of a policymaker, and that
deputy sheriffs are the alter ego of the sheriff generally[,]”
. . . [and] determined “that such North Carolina deputy
sheriffs may be lawfully terminated for political reasons
under the Elrod-Branti exception to prohibited political
terminations.”

Bland, 730 F.3d at 376 (quoting Jenkins, 119 F.3d at 1164). “In [Jenkins] the majority

explained that it was the deputies’ role as sworn law enforcement officers that was

dispositive[.]” Bland at 377. In McLaughlin, we noted that the “reasoning of Jenkins

and Bland was adopted by this Court in Carter v. Marion, 183 N.C. App. 449, 645

S.E.2d 129 (2007), review denied, 362 N.C. 175, 658 S.E.2d 271 (2008), and explained:

The plaintiffs in Carter were former deputy clerks of court
who claimed that they had been terminated from their
employment for political reasons, in violation of their
rights to free speech under the North Carolina
Constitution. On appeal, [the Carter opinion] . . . discussed
the holding of Jenkins that “deputies actually sworn to
engage in law enforcement activities on behalf of the

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sheriff” could be lawfully terminated for political reasons,
and noted that Jenkins based its holding on the facts that:

“[D]eputy sheriffs (1) implement the sheriff’s policies; (2)
are likely part of the sheriff’s core group of advisors; (3)
exercise significant discretion; (4) foster public confidence
in law enforcement; (5) are expected to provide the sheriff
with truthful and accurate information; and (6) are general
agents of the sheriff, and the sheriff is civilly liable for the
acts of his deputy.”

McLaughlin, __ N.C. App. at __, __ S.E.2d at __. (quoting Carter at 454, 654 S.E.2d

at 131 (citing Jenkins at 1162-63)). Carter thus held that “political affiliation is an

appropriate requirement for deputy clerks of superior court.” Id. This issue was also

discussed in Sims-Campbell:

[T]his Court and various federal appeals courts repeatedly
have held that deputy sheriffs and deputy clerks of court
may be fired for political reasons such as supporting their
elected boss’s opponents during an election.

Sims-Campbell, __ N.C. App. at __, __ S.E.2d at __ (citing Carter, Jenkins, Upton v.

Thompson, 930 F.2d 1209 (7th Cir. 1991), and Terry v. Cook, 866 F.2d 373 (11th Cir.

1989)). In McLaughlin we held that Carter was “controlling on the issue of whether

[plaintiff] could lawfully be fired based on political considerations” and that the

plaintiff’s “termination did not violate his free speech rights under the North Carolina

Constitution.” McLaughlin at __, __ S.E.2d at __.

We conclude, based upon the prior opinions in McLaughlin, Sims-Campbell,

and Carter, that, even assuming arguendo that plaintiff was terminated based on her

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political views, this did not violate her right to free speech under the North Carolina

Constitution. “Where a panel of the Court of Appeals has decided the same issue,

albeit in a different case, a subsequent panel of the same court is bound by that

precedent, unless it has been overturned by a higher court.” In re Civil Penalty, 324

N.C. 373, 384, 379 S.E.2d 30, 36 (1989). Because plaintiff’s substantive arguments

lack merit, we have no need to reach the parties’ arguments regarding defendants’

defense of sovereign immunity.

V. Conclusion

The trial court did not err in granting defendants’ motion for summary

judgment.

AFFIRMED.

Chief Judge McGEE and Judge BRYANT concur.

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