{ "id": 8522673, "name": "JAMES R. WARREN, Plaintiff-Appellant v. NEW HANOVER COUNTY BOARD OF EDUCATION, JEREMIAH PARTRICK, in his official capacity as a member of the New Hanover Board of Education, CARL UNSICKER, in his official capacity as a member of the New Hanover Board of Education, LUCILLE T. SHAFFER, in her official capacity as a member of the New Hanover Board of Education, and ANN KING, in her official capacity as a member of the New Hanover Board of Education, and RALPH DAVIS, Defendant-Appellees, and NORTH CAROLINA STATE BOARD OF EDUCATION, Defendant-Intervenor-Appellee", "name_abbreviation": "Warren v. New Hanover County Board of Education", "decision_date": "1991-11-19", "docket_number": "No. 915SC8", "first_page": "522", "last_page": "528", "citations": [ { "type": "official", "cite": "104 N.C. App. 522" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "283 S.E.2d 495", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "498" } ], "opinion_index": 0 }, { "cite": "304 N.C. 312", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567539 ], "year": 1981, "pin_cites": [ { "page": "317" } ], "opinion_index": 0, "case_paths": [ "/nc/304/0312-01" ] }, { "cite": "409 S.E.2d 753", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "104 N.C. App. 425", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522054 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc-app/104/0425-01" ] }, { "cite": "446 U.S. 635", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6186288 ], "weight": 3, "year": 1980, "pin_cites": [ { "page": "640" }, { "page": "1923-24" }, { "page": "577-78" } ], "opinion_index": 0, "case_paths": [ "/us/446/0635-01" ] }, { "cite": "379 U.S. 64", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11728748 ], "weight": 3, "year": 1964, "pin_cites": [ { "page": "74-75" }, { "page": "216" }, { "page": "133" } ], "opinion_index": 0, "case_paths": [ "/us/379/0064-01" ] }, { "cite": "354 U.S. 476", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6160660 ], "weight": 3, "year": 1957, "pin_cites": [ { "page": "484" }, { "page": "1308" }, { "page": "1506" } ], "opinion_index": 0, "case_paths": [ "/us/354/0476-01" ] }, { "cite": "391 U.S. 563", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1767525 ], "weight": 6, "year": 1968, "pin_cites": [ { "page": "569-70" }, { "page": "1735" }, { "page": "818" } ], "opinion_index": 0, "case_paths": [ "/us/391/0563-01" ] }, { "cite": "461 U.S. 138", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11298262 ], "weight": 6, "year": 1983, "pin_cites": [ { "page": "150" }, { "page": "1692" }, { "page": "722" } ], "opinion_index": 0, "case_paths": [ "/us/461/0138-01" ] }, { "cite": "101 L.Ed.2d 885", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1988, "pin_cites": [ { "parenthetical": "citing Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983) and Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968)" } ], "opinion_index": 0 }, { "cite": "108 S.Ct. 2847", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1988, "pin_cites": [ { "parenthetical": "citing Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983) and Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968)" } ], "opinion_index": 0 }, { "cite": "487 U.S. 1206", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1774720, 1774944, 1775109, 1774952, 1775211, 1774767, 1775156, 1774902, 1775127, 1774714, 1775069, 1775102 ], "year": 1988, "pin_cites": [ { "parenthetical": "citing Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983) and Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968)" } ], "opinion_index": 0, "case_paths": [ "/us/487/1206-07", "/us/487/1206-12", "/us/487/1206-02", "/us/487/1206-08", "/us/487/1206-09", "/us/487/1206-04", "/us/487/1206-06", "/us/487/1206-05", "/us/487/1206-01", "/us/487/1206-10", "/us/487/1206-11", "/us/487/1206-03" ] }, { "cite": "835 F.2d 1076", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10550971 ], "year": 1987, "pin_cites": [ { "page": "1078" } ], "opinion_index": 0, "case_paths": [ "/f2d/835/1076-01" ] }, { "cite": "745 F.2d 868", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 593075 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "877-78" }, { "page": "878" } ], "opinion_index": 0, "case_paths": [ "/f2d/745/0868-01" ] }, { "cite": "278 F. Supp. 717", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 5338819 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/f-supp/278/0717-01" ] }, { "cite": "176 S.E.2d 161", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "166", "parenthetical": "quoting American Dairy Queen Corp. v. Augustyn, 278 F. Supp. 717 (N.D. Ill. 1967)" } ], "opinion_index": 0 }, { "cite": "277 N.C. 94", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561932 ], "year": 1970, "pin_cites": [ { "page": "102", "parenthetical": "quoting American Dairy Queen Corp. v. Augustyn, 278 F. Supp. 717 (N.D. Ill. 1967)" } ], "opinion_index": 0, "case_paths": [ "/nc/277/0094-01" ] }, { "cite": "252 S.E.2d 698", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "702", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "296 N.C. 661", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569934 ], "year": 1979, "pin_cites": [ { "page": "667", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/296/0661-01" ] } ], "analysis": { "cardinality": 755, "char_count": 15148, "ocr_confidence": 0.772, "pagerank": { "raw": 8.007977766328463e-08, "percentile": 0.4643558369619233 }, "sha256": "206c88ed90e1d540275f688d93987e508d24c09bb18ffe631dec68ca60499186", "simhash": "1:1a3b707b973b6ada", "word_count": 2452 }, "last_updated": "2023-07-14T22:39:04.224888+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge Hedrick and Judge Greene concur." ], "parties": [ "JAMES R. WARREN, Plaintiff-Appellant v. NEW HANOVER COUNTY BOARD OF EDUCATION, JEREMIAH PARTRICK, in his official capacity as a member of the New Hanover Board of Education, CARL UNSICKER, in his official capacity as a member of the New Hanover Board of Education, LUCILLE T. SHAFFER, in her official capacity as a member of the New Hanover Board of Education, and ANN KING, in her official capacity as a member of the New Hanover Board of Education, and RALPH DAVIS, Defendant-Appellees, and NORTH CAROLINA STATE BOARD OF EDUCATION, Defendant-Intervenor-Appellee" ], "opinions": [ { "text": "EAGLES, Judge.\nOn appeal plaintiff contends that the trial court erred in granting defendants\u2019 Rule 12(b)(6) motion to dismiss plaintiffs free speech claims and denying plaintiff the right to appeal the Board\u2019s decision directly to the Superior Court. We agree and reverse the trial court\u2019s order as to the free speech claims and the right to appeal under G.S. 115C-305.\n\u201cThe only purpose of a Rule 12(b)(6) motion is to test the legal sufficiency of the pleading against which it is directed. . . . \u2018The function of a motion to dismiss is to test the law of a claim, not the facts which support it.\u2019 \u201d White v. White, 296 N.C. 661, 667, 252 S.E.2d 698, 702 (1979) (citations omitted). \u201cThis rule generally precludes dismissal except in those instances where the face of the complaint discloses some insurmountable bar to recovery.\u201d Sutton v. Duke, 277 N.C. 94, 102, 176 S.E.2d 161, 166 (1970) (quoting American Dairy Queen Corp. v. Augustyn, 278 F. Supp. 717 (N.D. Ill. 1967)).\nHere, plaintiff alleged that by denying his promotion to Career Status II based on his presentation of the NCAE report, defendants deprived him of his free speech rights under the First Amendment of the U.S. Constitution and Article I, sec. 14 of the North Carolina Constitution and accordingly violated 42 U.S.C. 1983. 42 U.S.C. 1983 provides in part:\nEvery person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.\nTo establish a cause of action for wrongful discharge or demotion in violation of the employee\u2019s First Amendment rights, the employee must show first \u201cthat the speech complained of qualified as protected speech or activity\u201d and second \u201cthat such protected speech or activity was the \u2018motivating\u2019 or \u2018but for\u2019 cause for his discharge or demotion.\u201d Jurgensen v. Fairfax County, 745 F.2d 868, 877-78 (4th Cir. 1984). \u201c[T]he resolution of these, two critical issues is a matter of law and not of fact.\u201d Id. at 878.\nIn applying the first prong of this two-part test we note that \u201c[s]peech is constitutionally protected only if it relates to matters of public concern and if the interests of the speaker and the community in the speech outweigh the interests of the employer in maintaining an efficient workplace.\u201d Piver v. Pender County Board of Education, 835 F.2d 1076, 1078 (4th Cir. 1987), cert. denied, 487 U.S. 1206, 108 S.Ct. 2847, 101 L.Ed.2d 885 (1988) (citing Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983) and Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968)).\nWe agree with plaintiff that the speech at issue here involved matters of public concern rather than the internal working conditions of teachers. The General Assembly initiated the Career Development Pilot Program in New Hanover County and fifteen other school systems \u201cto enable the State Board [of Education] and the General Assembly to analyze all facets of a career development plan prior to statewide implementation.\u201d 1985 N.C. Sess. Laws ch. 479, \u00a7 40. The survey that was the subject of plaintiff\u2019s speech related to efficiency and teacher acceptance of the pilot program which was of interest to the Board of Education, the General Assembly, and the citizens of North Carolina. Plaintiff, as president of the New Hanover County NCAE, addressed the Board about the survey results at a public school board meeting.\nAdditionally, we fail to see how any interest the State, as employer, may have had in regulating the speech could have outweighed the teacher\u2019s interest, as a citizen, in publicizing and commenting on the results of the survey. Examples of legitimate employer concerns are discipline and harmony in the workplace, confidentiality, and protection of close working relationships that require loyalty and confidence. Pickering v. Board of Education, 391 U.S. 563, 569-70, 88 S.Ct. 1731, 1735, 20 L.Ed.2d 811, 818 (1968). \u201cThe Pickering balance requires full consideration of the government\u2019s interest in the effective and efficient fulfillment of its responsibilities to the public.\u201d Connick v. Myers, 461 U.S. 138, 150, 103 S.Ct. 1684, 1692, 75 L.Ed.2d 708, 722 (1983). At the center of the employee\u2019s interest is the first amendment protection of the \u201cunfettered interchange of ideas for the bringing about of political and social changes desired by the people.\u201d Roth v. United States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1308, 1 L.Ed.2d 1498, 1506 (1957). \u201c[S]peech concerning public affairs is more than self-expression; it is the essence of self-government.\u201d Garrison v. Louisiana, 379 U.S. 64, 74-75, 85 S.Ct. 209, 216, 13 L.Ed.2d 125, 133 (1964).\nHaving concluded that the speech at issue was constitutionally protected, we turn to the second prong of the test. To survive defendants\u2019 Rule 12(b)(6) motion, plaintiff also had to show that his speech was the motivating factor behind the decision not to promote him to career Status II. Here, plaintiff alleged that before he disclosed the results of the survey he had consistently received excellent evaluations and that he had been selected Teacher of the Year at his school and had finished third in the balloting for New Hanover County Teacher of the Year for the 1985-86 school year. He alleged that early in December 1986 a plan evaluator and the principal of his school evaluated his teaching and that both gave him high marks. The same plan evaluator observed plaintiffs teaching on 6 February 1987, just three days after his report to the Board, gave plaintiff low scores and accused him of trying to undermine the Assistant Superintendent in charge of the Career Development Plan. On the day the results were scheduled for release to the Board of Education, the school principal \u201cthreatened plaintiff by stating that people were going to be upset with the results, and plaintiff might get caught \u2018like the Nazis got the Jews.\u2019 \u201d On 12 February 1987 the principal evaluated plaintiff\u2019s teaching, said plaintiff needed improvement, and showed hostility toward plaintiff. On 28 April 1987 the principal prepared plaintiff\u2019s summative evaluation and rated plaintiff \u201cat standard\u201d in four functions. One \u201cat standard\u201d rating was sufficient to prevent plaintiff\u2019s promotion to Career Status II. By contrast, in his 1986 evaluation plaintiff had received no scores lower than \u201cabove standard.\u201d Plaintiff reapplied for and received a promotion to Career Status II in the Fall of 1987 after he was no longer an NCAE officer. During plaintiff\u2019s evaluations that year, no observer found that any area of plaintiff\u2019s teaching needed improvement. His summative evaluation scores at the end of the school year consisted exclusively of \u201cwell above standard\u201d and \u201csuperior\u201d ratings. Taking plaintiff\u2019s allegations as true, we conclude that the complaint was sufficient to withstand defendants\u2019 Rule 12(b)(6) motion to dismiss.\nAdditionally, we find it unnecessary to address defendants\u2019 arguments regarding qualified immunity. The Supreme Court has said:\nBy the plain terms of \u00a7 1983, two \u2014 and only two \u2014 allegations are required in order to state a cause of action under that statute. First, the plaintiff must allege that some person has deprived him of a federal right. Second, he must allege that the person who has deprived him of that right acted under color of state or territorial law. . . .\nMoreover, this Court has never indicated that qualified immunity is relevant to the existence of the plaintiffs cause of action; instead we have described it as a defense available to the official in question.\nGomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 1923-24, 64 L.Ed.2d 572, 577-78 (1980).\nFinally, we address plaintiff\u2019s contention that the trial court erred in denying him the right to appeal the Board\u2019s decision to the Superior Court under G.S. 115C-305. For the reasons stated in Williams v. New Hanover County Board of Education, 104 N.C. App. 425, 409 S.E.2d 753 (1991), we hold that a teacher who is denied a promotion under the career ladder program may appeal to the Superior Court after exhausting his administrative remedies by appealing to the local board of education. We note that the standards for judicial review set forth in G.S. 150B-51, the whole record test, govern appeals from decisions of city or county boards of education. Overton v. Goldsboro City Board of Education, 304 N.C. 312, 317, 283 S.E.2d 495, 498 (1981).\nAccordingly, the order of the trial court is reversed as it relates to plaintiff\u2019s free speech claims and right to appeal to the Superior Court.\nReversed.\nChief Judge Hedrick and Judge Greene concur.", "type": "majority", "author": "EAGLES, Judge." } ], "attorneys": [ "Ferguson, Stein, Watt, Wallas, Adkins and Gresham, P.A., by Thomas M. Stem, for plaintiff-appellant.", "Womble, Carlyle, Sandridge & Rice, by James R. Morgan Jr., and Hogue, Hill, Jones, Nash & Lynch, by William L. Hill, II, for defendant-appellees.", "Attorney General Lacy H. Thornburg, by Assistant Attorney General Laura E. Crumpler, for defendant-intervenor-appellee." ], "corrections": "", "head_matter": "JAMES R. WARREN, Plaintiff-Appellant v. NEW HANOVER COUNTY BOARD OF EDUCATION, JEREMIAH PARTRICK, in his official capacity as a member of the New Hanover Board of Education, CARL UNSICKER, in his official capacity as a member of the New Hanover Board of Education, LUCILLE T. SHAFFER, in her official capacity as a member of the New Hanover Board of Education, and ANN KING, in her official capacity as a member of the New Hanover Board of Education, and RALPH DAVIS, Defendant-Appellees, and NORTH CAROLINA STATE BOARD OF EDUCATION, Defendant-Intervenor-Appellee\nNo. 915SC8\n(Filed 19 November 1991)\n1. Master and Servant \u00a7 10.2 (NCI3d)\u2014 teacher \u2014 promotion denied \u2014 violation of free speech\nTo establish a cause of action for wrongful discharge or demotion in violation of an employee\u2019s First Amendment rights, the employee must show first that the speech complained of qualified as protected speech or activity and second that such protected speech or activity was the motivating or \u201cbut for\u201d cause for the discharge or demotion.\nAm Jur 2d, Schools \u00a7 182.\n2. Schools \u00a7 13 (NCI3d)\u2014 teacher \u2014 promotion denied \u2014 violation of free speech\nThe trial court erred by granting defendants\u2019 motion to dismiss under N.C.G.S. \u00a7 1A-1, Rule 12(b)(6) where plaintiff teacher, as president of the New Hanover County North Carolina Association of Educators, reported to defendant Board unfavorable results of a survey of teachers in the career development pilot program;- plaintiff had received very positive evaluations of his teaching performance before he reported the results of the survey, including a promotion to Career Status I and teacher of the year awards; shortly after publicizing the survey he received unfavorable evaluations and was denied promotion to Career Status II; and plaintiff was promoted to Career Status II after he was no longer an NCAE officer. The speech at issue here was constitutionally protected in that it involved matters of public concern rather than the internal working conditions of teachers, and no interest of the State as an employer in regulating the speech could have outweighed the teacher\u2019s interest as a citizen in publicizing and commenting on the results of the survey. As to whether plaintiff\u2019s speech was the motivating factor in the decision not to promote him, the complaint was sufficient to withstand defendants\u2019 motion to dismiss when his allegations are taken as true.\nAm Jur 2d, Schools \u00a7 182.\n3. Schools \u00a7 13 (NCI3d)\u2014 teacher \u2014promotion denied \u2014right to . appeal to Superior Court\nA teacher who is denied a promotion under the career ladder program may appeal to the Superior Court after exhausting his administrative remedies by appealing to the local board of education. The standards for judicial review set forth in N.C.G.S. \u00a7 150B-51, the whole record test, govern appeals from decisions of city or county boards of education.\nAm Jur 2d, Schools \u00a7 210.\nAPPEAL by plaintiff from judgment entered 1 October 1990 by Judge Napoleon B. Barefoot in NEW HANOVER County Superior Court. Heard in the Court of Appeals 15 October 1991.\nIn 1985 the General Assembly enacted the Career Development Pilot Program, a merit pay promotion system, \u201cto improve the quality of classroom instruction, to increase the attractiveness of teaching, and to encourage the recognization and retention of high quality teachers.\u201d G.S. 115C-363.2(a). Under the program, teachers are observed and evaluated using established criteria as provided in G.S. 115C-363;3, and those who receive the required evaluation ratings are recommended for promotion to a higher pay level. G.S. 115C-363.3. The program established three promotional levels: Career Status I, Career Status II, and Career Status III. The pilot program was initiated in New Hanover County and 15 other school systems.\nIn January 1987, the North Carolina Association of Educators (NCAE) completed a survey of teachers in the career development pilot program. In New Hanover County, almost all of the teachers surveyed by NCAE indicated that they were dissatisfied with the experimental merit pay program. Plaintiff, a public school teacher, had been elected president of the New Hanover County NCAE for the 1986-87 school year, and as president it was his duty to publicize the results of the survey to the Board of Education.\nBefore he reported the results of the survey to the Board, plaintiff had received very positive evaluations of his teaching performance. He had taught elementary school in New Hanover County for more than 21 years. During the 1985-86 school year, plaintiff applied for and received a promotion to Career Status I. At the conclusion of the 1985-86 school year he was selected Teacher of the Year at College Park School. He had received this honor twice before. Additionally, he finished third in the balloting for New Hanover County Teacher of the Year for the 1985-86 school year. He alleges that as a result of his publicizing the NCAE survey, he shortly thereafter received unfavorable evaluations and his school\u2019s principal denied plaintiffs promotion to Career Status II. The Superintendent upheld the principal\u2019s decision and plaintiff appealed to the three-member review panel who upheld the decision. Plaintiff then appealed to the Board of Education, which voted four-to-three to uphold the principal\u2019s decision. In the fall of 1987 after plaintiff was no longer an NCAE officer, he reapplied for and was promoted to Career Status II.\nPlaintiff filed suit on 2 September 1988 alleging, among other things, that defendants violated his federal and state constitutional rights to free speech when they denied him a merit pay promotion. Plaintiff also filed a petition for judicial review of the Board\u2019s denial of his promotion under G.S. 115C-305. On 1 October 1990 the trial court granted defendants\u2019 Rule 12(b)(6) motion to dismiss. Plaintiff appeals.\nFerguson, Stein, Watt, Wallas, Adkins and Gresham, P.A., by Thomas M. Stem, for plaintiff-appellant.\nWomble, Carlyle, Sandridge & Rice, by James R. Morgan Jr., and Hogue, Hill, Jones, Nash & Lynch, by William L. Hill, II, for defendant-appellees.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General Laura E. Crumpler, for defendant-intervenor-appellee." }, "file_name": "0522-01", "first_page_order": 550, "last_page_order": 556 }