{ "id": 11648131, "name": "KYLE R. PASCHAL, Plaintiff v. JERRY D. MYERS, Personally and in his Official Capacity as County Manager of Rockingham County, North Carolina; W. WAYNE GARRISON, Personally and in his Official Capacity as Director of Rockingham County Emergency Medical Services; and ROCKINGHAM COUNTY, a Political Subdivision of the State of North Carolina, Defendants", "name_abbreviation": "Paschal v. Myers", "decision_date": "1998-03-17", "docket_number": "No. COA97-193", "first_page": "23", "last_page": "33", "citations": [ { "type": "official", "cite": "129 N.C. App. 23" } ], "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": "226 S.E.2d 835", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "837" } ], "opinion_index": 0 }, { "cite": "30 N.C. App. 387", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554364 ], "year": 1976, "pin_cites": [ { "page": "389" } ], "opinion_index": 0, "case_paths": [ "/nc-app/30/0387-01" ] }, { "cite": "426 U.S. 482", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6179431 ], "weight": 5, "year": 1976, "pin_cites": [ { "page": "493" }, { "page": "9" } ], "opinion_index": 0, "case_paths": [ "/us/426/0482-01" ] }, { "cite": "964 F.2d 1436", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 42813 ], "year": 1992, "pin_cites": [ { "page": "1440" } ], "opinion_index": 0, "case_paths": [ "/f2d/964/1436-01" ] }, { "cite": "349 S.E.2d 862", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "318 N.C. 507", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4736704, 4734882, 4738767, 4739771, 4732061 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/318/0507-03", "/nc/318/0507-02", "/nc/318/0507-01", "/nc/318/0507-05", "/nc/318/0507-04" ] }, { "cite": "342 S.E.2d 914", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "pin_cites": [ { "page": "922" }, { "page": "925" } ], "opinion_index": 0 }, { "cite": "80 N.C. App. 339", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523825 ], "weight": 2, "pin_cites": [ { "page": "349" }, { "page": "354" } ], "opinion_index": 0, "case_paths": [ "/nc-app/80/0339-01" ] }, { "cite": "470 U.S. 532", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11299646 ], "weight": 6, "year": 1985, "pin_cites": [ { "page": "542", "parenthetical": "citation omitted" }, { "page": "503-04", "parenthetical": "citation omitted" }, { "page": "545-46" }, { "page": "506" }, { "page": "546" }, { "page": "506" } ], "opinion_index": 0, "case_paths": [ "/us/470/0532-01" ] }, { "cite": "364 S.E.2d 672", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "321 N.C. 480", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2567648, 2572322, 2567851, 2572779, 2570637 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/321/0480-04", "/nc/321/0480-03", "/nc/321/0480-05", "/nc/321/0480-02", "/nc/321/0480-01" ] }, { "cite": "361 S.E.2d 418", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "420" } ], "opinion_index": 0 }, { "cite": "87 N.C. App. 467", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358559 ], "year": 1987, "pin_cites": [ { "page": "469" } ], "opinion_index": 0, "case_paths": [ "/nc-app/87/0467-01" ] }, { "cite": "326 S.E.2d 39", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "43", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "73 N.C. App. 44", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521674 ], "year": 1985, "pin_cites": [ { "page": "49", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/73/0044-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 126-35", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1991, "opinion_index": 0 }, { "cite": "317 S.E.2d 678", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "311 N.C. 303", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4679649, 4682146, 4682983, 4680616, 4682706 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/311/0303-03", "/nc/311/0303-04", "/nc/311/0303-05", "/nc/311/0303-02", "/nc/311/0303-01" ] }, { "cite": "426 U.S. 341", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6176818 ], "weight": 2, "year": 1976, "pin_cites": [ { "page": "344-45" }, { "page": "690" } ], "opinion_index": 0, "case_paths": [ "/us/426/0341-01" ] }, { "cite": "312 S.E.2d 917", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "924" } ], "opinion_index": 0 }, { "cite": "67 N.C. App. 198", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526055 ], "pin_cites": [ { "page": "209" } ], "opinion_index": 0, "case_paths": [ "/nc-app/67/0198-01" ] }, { "cite": "415 S.E.2d 200", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "331 N.C. 119", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2499683, 2502026, 2498378, 2501299, 2501692 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/331/0119-05", "/nc/331/0119-03", "/nc/331/0119-01", "/nc/331/0119-04", "/nc/331/0119-02" ] }, { "cite": "341 S.E.2d 39", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "315 N.C. 597", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4714275, 4718790, 4717073, 4719672, 4715545 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/315/0597-02", "/nc/315/0597-01", "/nc/315/0597-03", "/nc/315/0597-04", "/nc/315/0597-05" ] }, { "cite": "335 S.E.2d 79", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "77 N.C. App. 253", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521759 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "259" } ], "opinion_index": 0, "case_paths": [ "/nc-app/77/0253-01" ] }, { "cite": "412 S.E.2d 97", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "99", "parenthetical": "citing Walker v. Westinghouse Electric Corp., 77 N.C. App. 253, 335 S.E.2d 79 (1985), disc. review denied, 315 N.C. 597, 341 S.E.2d 39 (1986)" } ], "opinion_index": 0 }, { "cite": "104 N.C. App. 652", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523555 ], "year": 1991, "pin_cites": [ { "page": "655", "parenthetical": "citing Walker v. Westinghouse Electric Corp., 77 N.C. App. 253, 335 S.E.2d 79 (1985), disc. review denied, 315 N.C. 597, 341 S.E.2d 39 (1986)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/104/0652-01" ] }, { "cite": "381 S.E.2d 445", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "447" } ], "opinion_index": 0 }, { "cite": "325 N.C. 172", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2488329 ], "year": 1989, "pin_cites": [ { "page": "175" } ], "opinion_index": 0, "case_paths": [ "/nc/325/0172-01" ] }, { "cite": "335 S.E.2d 13", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "333 S.E.2d 490", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "314 N.C. 331", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4686660, 4695653, 4695471, 4689718, 4689592 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/314/0331-03", "/nc/314/0331-01", "/nc/314/0331-05", "/nc/314/0331-02", "/nc/314/0331-04" ] }, { "cite": "328 S.E.2d 818", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "828" } ], "opinion_index": 0 }, { "cite": "74 N.C. App. 331", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524570 ], "year": 1985, "pin_cites": [ { "page": "345" } ], "opinion_index": 0, "case_paths": [ "/nc-app/74/0331-01" ] }, { "cite": "417 S.E.2d 277", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1992, "pin_cites": [ { "page": "280", "parenthetical": "quoting Sides v. Duke University, 74 N.C. App. 331, 345, 328 S.E.2d 818, 828, disc. review denied, 314 N.C. 331, 333 S.E.2d 490, and disc. review denied, 314 N.C. 331, 335 S.E.2d 13 (1985)" }, { "page": "281" }, { "page": "279" }, { "page": "281" } ], "opinion_index": 0 }, { "cite": "106 N.C. App. 410", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 5313316 ], "weight": 4, "year": 1992, "pin_cites": [ { "page": "416", "parenthetical": "quoting Sides v. Duke University, 74 N.C. App. 331, 345, 328 S.E.2d 818, 828, disc. review denied, 314 N.C. 331, 333 S.E.2d 490, and disc. review denied, 314 N.C. 331, 335 S.E.2d 13 (1985)" }, { "page": "414" }, { "page": "417" } ], "opinion_index": 0, "case_paths": [ "/nc-app/106/0410-01" ] }, { "cite": "485 S.E.2d 299", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "345 N.C. 761", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53952, 54156, 54189, 53903, 53950 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/345/0761-01", "/nc/345/0761-02", "/nc/345/0761-04", "/nc/345/0761-03", "/nc/345/0761-05" ] }, { "cite": "480 S.E.2d 685", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "687" } ], "opinion_index": 0 }, { "cite": "345 N.C. 443", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 54084 ], "year": 1997, "pin_cites": [ { "page": "446" } ], "opinion_index": 0, "case_paths": [ "/nc/345/0443-01" ] }, { "cite": "435 S.E.2d 336", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "334 N.C. 621", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2530443, 2532332, 2530396, 2531257, 2532508 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/334/0621-03", "/nc/334/0621-02", "/nc/334/0621-05", "/nc/334/0621-04", "/nc/334/0621-01" ] }, { "cite": "414 S.E.2d 339", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "342" } ], "opinion_index": 0 }, { "cite": "331 N.C. 57", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2500046 ], "year": 1992, "pin_cites": [ { "page": "62-63" } ], "opinion_index": 0, "case_paths": [ "/nc/331/0057-01" ] }, { "cite": "431 S.E.2d 489", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "pin_cites": [ { "page": "492-93" } ], "opinion_index": 0 }, { "cite": "110 N.C. App. 707", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526342 ], "weight": 2, "pin_cites": [ { "page": "712" }, { "page": "713" } ], "opinion_index": 0, "case_paths": [ "/nc-app/110/0707-01" ] } ], "analysis": { "cardinality": 1000, "char_count": 25382, "ocr_confidence": 0.75, "pagerank": { "raw": 8.243416581774754e-08, "percentile": 0.4776336381001363 }, "sha256": "b90143d1447a4fdf00d7825c4e41002e08d2bd7f5c1ad3a51ab1fdb2ac783c4e", "simhash": "1:3b2b95a2bc7b8add", "word_count": 3953 }, "last_updated": "2023-07-14T18:14:06.814789+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GREENE and JOHN concur." ], "parties": [ "KYLE R. PASCHAL, Plaintiff v. JERRY D. MYERS, Personally and in his Official Capacity as County Manager of Rockingham County, North Carolina; W. WAYNE GARRISON, Personally and in his Official Capacity as Director of Rockingham County Emergency Medical Services; and ROCKINGHAM COUNTY, a Political Subdivision of the State of North Carolina, Defendants" ], "opinions": [ { "text": "TIMMONS-GOODSON, Judge.\nPlaintiff Kyle R. Paschal filed this wrongful termination action on 22 November 1995 against defendants Jerry D. Myers, W. Wayne Garrison, and Rockingham County. In his complaint, plaintiff alleged that he had been terminated from permanent employment with defendant County in violation of his contractual and statutory rights not to be discharged except for adequate cause, in violation of the procedural rights accorded him by the Rockingham County personnel ordinance, in violation of the state personnel records privacy law, and in violation of his due process rights under the Law of the Land Clause of the North Carolina Constitution. Defendants filed their answer on 26 December 1995, denying the material allegations of plaintiff\u2019s complaint, and asserting affirmative defenses including governmental and official immunity, failure to exhaust administrative remedies, and failure to mitigate damages. Thereafter, on 12 September 1996, defendants filed a motion for summary judgment. This motion was heard by Judge Melzer A. Morgan, Jr. during the 11 October 1996 civil session of Rockingham County Superior Court.\nThe evidence tends to show that plaintiff had been employed by defendant County with its Emergency Medical Service (hereinafter \u201cEMS\u201d) as an emergency medical technician-paramedic since August 1992. In June 1993, plaintiff became a full-time, non-probationary employee of defendant County. At all times during plaintiffs employment, defendant County had an established employment policy, which had been enacted as an ordinance of Rockingham County.\nOn 20 May 1995, plaintiff fractured the little finger on his right hand. On 22 May 1995, plaintiff completed a North Carolina Industrial Commission Form 19 (hereinafter \u201cI.C. Form 19\u201d), indicating that he had been injured during and in the course of employment. This form was submitted to an EMS officer on or about 1 June 1995.\nUpon receiving a copy of this form, plaintiff\u2019s immediate supervisor, Lisa King, asked EMS Training Officer, Phyllis Paschall, to investigate plaintiffs statement that he had been injured during and in the course of employment. King told Paschall that plaintiff had previously indicated that he had hurt his finger while vacuuming, but had told other EMS employees that he had injured his finger during and in the course of employment, in accordance with the statement on the I.C. Form 19 injury report.\nPlaintiff met with Paschall and King on 1 June 1995, and was suspended from employment pending investigation of King\u2019s allegations that plaintiff had falsified the I.C. Form 19 injury report. Subsequently, Paschall took the statements of several of plaintiff\u2019s coworkers, who confirmed King\u2019s version of the cause of plaintiff\u2019s injury. These witnesses stated that they had heard plaintiff tell King, during a telephone conversation, that he had injured his finger while vacuuming. Paschall also listened to a C-Comm tape of plaintiff\u2019s telephone calls on the evening of 20 May 1995, during which plaintiff discussed the cause of his injury. As a result of the information obtained during her investigation, on 5 June 1995, Paschall executed a written notice of termination discharging plaintiff from employment. The reasons for termination stated therein included falsification of a county record for profit, and discourteous treatment of another county employee. Plaintiff has at all times denied telling King that he had injured himself while vacuuming. Moreover, plaintiff contends that he never had notice of any problems with his job performance, specifically, in reference to discourteous treatment of another county employee before termination.\nOn 13 June 1995, plaintiff submitted a written request for review of his termination to the Director of Rockingham County EMS, defendant W. Wayne Garrison. Defendant Garrison held a conference on this matter on 8 August 1995. Upon review of the evidence utilized by Paschall in making her decision, defendant Garrison issued a ruling on 14 August 1995, upholding plaintiff\u2019s dismissal for the reasons stated in Paschall\u2019s 5 June 1995 notice of termination. Defendant Garrison concluded that dismissal was proper because plaintiffs alleged misrepresentation of the cause of his finger injury indicated that plaintiff \u201cmay lie about giving medicine.\u201d\nThereafter, plaintiff requested a hearing before defendant Jerry D. Myers, Rockingham County Manager. Defendant Myers conducted a full, evidentiary hearing in this matter on 3 October 1995, and, on 27 October 1995, issued a ruling upholding plaintiffs termination. Therein, defendant Myers found that plaintiff had injured his finger on 20 May 1995 during a violent altercation with a guest of the department, Amanda West, resulting in their both having to receive medical treatment; that this altercation led to plaintiffs injury; and that plaintiff made a conscious effort to mislead his supervisors as to the cause of his injury.\nAfter reviewing all of the evidence before him, Judge Morgan entered an order granting defendants\u2019 motion for summary judgment. Plaintiff appeals.\nPlaintiff brings forth but one assignment of error on appeal, by which he argues that the trial court erred in granting defendants\u2019 motion for summary judgment. For the reasons discussed herein, we cannot agree, and accordingly, affirm the decision of the trial court.\nSummary judgment is properly granted if, viewing the evidence in the light most favorable to the non-movant, there is no genuine issue of material fact, and any party is entitled to judgment as a matter of law. N.C.R. Civ. P. 56. The moving party bears the burden of showing a lack of issue of triable fact, and may meet this burden by showing the non-moving party cannot prove the existence of an essential element of his claim or cannot surmount an affirmative defense which would bar the claim. Messick v. Catawba County, 110 N.C. App. 707, 712, 431 S.E.2d 489, 492-93 (citing Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 62-63, 414 S.E.2d 339, 342 (1992)), disc. review denied, 334 N.C. 621, 435 S.E.2d 336 (1993).\nI. Breach of Contract Claim\nFirst, plaintiff contends that his contract of employment was governed by the County\u2019s personnel policies included in its Employee Handbook. As those policies were properly a part of plaintiffs contract of employment, plaintiff asserts that there are disputed issues of fact as to whether defendants carried out his suspension and dismissal in breach of his contract of employment.\nIrrefutably, North Carolina caselaw mandates that in the absence of an employment contract for a definite period, the employment is presumed to be \u201cat will,\u201d terminable at the will of either employer or employee. Soles v. City of Raleigh Civil Service Comm., 345 N.C. 443, 446, 480 S.E.2d 685, 687, reh\u2019g denied, 345 N.C. 761, 485 S.E.2d 299 (1997). Our Supreme Court has recognized two exceptions to the terminable-at-will doctrine: (1) \u201cwhere plaintiff-employee is assured that he cannot be fired except for incompetence and \u2018where the employee gives some special consideration in addition to his services,\u2019 \u201d Howell v. Town of Carolina Beach, 106 N.C. App. 410, 416, 417 S.E.2d 277, 280 (1992) (quoting Sides v. Duke University, 74 N.C. App. 331, 345, 328 S.E.2d 818, 828, disc. review denied, 314 N.C. 331, 333 S.E.2d 490, and disc. review denied, 314 N.C. 331, 335 S.E.2d 13 (1985)) (alteration in original); and (2) \u201cwhere an employment contract is terminated \u2018for an unlawful reason or purpose that contravenes public policy.\u2019 \u201d Id. at 416, 417 S.E.2d at 281 (quoting Coman v. Thomas Co., 325 N.C. 172, 175, 381 S.E.2d 445, 447 (1989)). Additionally, \u201cin some circumstances employee manuals setting forth reasons and procedures for termination may become part of the employment contract even where an express contract is nonexistent,\u201d so as to negate the terminable-at-will doctrine. Salt v. Applied Analytical, Inc., 104 N.C. App. 652, 655, 412 S.E.2d 97, 99 (1991) (citing Walker v. Westinghouse Electric Corp., 77 N.C. App. 253, 335 S.E.2d 79 (1985), disc. review denied, 315 N.C. 597, 341 S.E.2d 39 (1986)), cert. denied, 331 N.C. 119, 415 S.E.2d 200 (1992). Notably, however, \u201c \u2018unilaterally promulgated employment manuals or policies do not become [a] part of the employment contract, unless expressly included [therein].\u2019 \u201d Howell, 106 N.C. App. at 414, 417 S.E.2d at 279 (quoting Walker, 77 N.C. App. at 259, 335 S.E.2d at 83-84).\nIn the instant case, plaintiff was a non-probationary, permanent employee for an indefinite term, i.e., an at-will employee. Further, plaintiff\u2019s case does not come within any of the public policy exceptions to the terminable-at-will doctrine. Plaintiff has not presented any evidence to show that the County\u2019s Employee Handbook was given to him at the time of his employment, that he had to sign indicating its receipt and his understanding of the Handbook\u2019s contents, or any other evidence that the Handbook\u2019s personnel policies had been made a part of his employment contract. Plaintiff maintains, however, the mere fact that the Rockingham County Board of County Commissioners had adopted, as an ordinance, the County\u2019s personnel policies contained in the Handbook demands that the Handbook\u2019s personnel policies were a part of his contract. This argument is unpersuasive.\nThis Court in Howell, 106 N.C. App. 410, 417 S.E.2d 277, was presented with similar circumstances, where the Town Council of Carolina Beach had adopted and issued a \u201cPersonnel Policies and Procedures Manual (pursuant to section 160A-164 of the North Carolina General Statutes).\u201d In that case, this Court declined to hold that the mere adoption of the Town\u2019s personnel policies as an ordinance would necessitate the conclusion that the policies had been included in the plaintiff\u2019s employment contract. Id. In accordance with Howell, we decline to hold that mere adoption of Rockingham County\u2019s Employee Handbook\u2019s personnel policies as an ordinance, makes those personnel policies a part of plaintiff\u2019s employment contract. As plaintiff has failed to show that the Handbook\u2019s personnel policies were expressly included in his employment contract, summary judgment was properly granted on plaintiff\u2019s breach of contract claim.\nII. Due Process Claim\nPlaintiff also contends that there are issues of fact as to whether defendants denied him due process of law by failing to adequately and fairly notify him prior to his termination and post-termination appeals of the evidence, which was the alleged basis for his suspension and dismissal, and by rendering decisions which were arbitrary and capricious.\nWhile defendants contend otherwise, plaintiff has sufficiently shown that an enforceable property interest in continued employment was \u201ccreated by ordinance,\u201d in this case. See Burwell v. Griffin, 67 N.C. App. 198, 209, 312 S.E.2d 917, 924 (quoting Bishop v. Wood, 426 U.S. 341, 344-45, 48 L. Ed. 2d 684, 690 (1976)), appeal dismissed and disc. review denied, 311 N.C. 303, 317 S.E.2d 678 (1984). Herein, the Employee Handbook, which was also a town ordinance, created the reasonable expectation of continued employment within the meaning of the Due Process Clause. See Howell, 106 N.C. App. at 417, 417 S.E.2d at 281 (comparing the Town of Carolina Beach\u2019s ordinance to the rights given State employees pursuant to N.C. Gen. Stat. \u00a7 126-35 (1991), which has been held to create a reasonable expectation of employment and a property interest within the meaning of the Due Process Clause). We must, therefore, decide whether plaintiff received the process he was due.\nIn order to facilitate discussion of this question, however, we must first address the capacities in which the defendants are being sued. We note that while the caption of the complaint alleges that plaintiff is suing defendants Garrison and Myers in their individual and official capacities, the complaint fails to assert any allegations that show that these defendants were acting in any manner other than their official capacities. Moreover, the general rule is that \u201ca \u2018public official\u2019 is immune from personal liability for \u2018mere negligence\u2019 in the performance of those duties, but he is not shielded from liability if his alleged actions were \u2018corrupt or malicious\u2019 or if \u2018he acted outside and beyond the scope of his duties.\u2019 \u201d Wiggins v. City of Monroe, 73 N.C. App. 44, 49, 326 S.E.2d 39, 43 (1985) (citations omitted), quoted in Thompson Cadillac-Oldsmobile, Inc. v. Silk Hope Automobile, Inc., 87 N.C. App. 467, 469, 361 S.E.2d 418, 420 (1987), disc. rev. denied, 321 N.C. 480, 364 S.E.2d 672 (1988).\nThe facts fail to show any actions of the magnitude to pierce the cloak of official immunity, so as to allow defendants Myers and Garrison to be sued in their individual capacities. We conclude, then, that defendants Myers and Garrison may only be sued in their official capacities, as Rockingham County Manager and Director of Rockingham County EMS, respectively. The County, of course, may be derivatively liable for the actions of defendants Myers and Garrison if they have waived immunity from suit. See N.C. Gen. Stat. \u00a7 153A-435 (1991).\nA. Pre-termination Due Process\nIn Cleveland Bd. of Educ. v. Loudermill, the United States Supreme Court determined that the Due Process Clause requires \u201c \u2018an individual be given an opportunity for a hearing before he is deprived of any significant property interest.\u2019 \u201d 470 U.S. 532, 542, 84 L. Ed. 2d 494, 503-04 (1985) (citation omitted) (emphasis omitted). The employee must have a pre-termination opportunity to respond to the allegations against him. This pre-termination opportunity to respond is \u201c \u2018an initial check against mistaken decisions \u2014 essentially, a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action.\u2019 \u201d Leiphart v. N.C. School of the Arts, 80 N.C. App. 339, 349, 342 S.E.2d 914, 922 (quoting Loudermill, 470 U.S. at 545-46, 84 L. Ed. 2d at 506), cert. denied, 318 N.C. 507, 349 S.E.2d 862 (1986). The employer must also provide the employee with \u201coral or written notice of the charges against him, an explanation of the employer\u2019s evidence, and an opportunity to present his side of the story.\u201d Loudermill, 470 U.S. at 546, 84 L. Ed. 2d at 506. This evidence need not include all evidence on a charge, or even the documentary evidence in support thereof; rather, due process only requires that a descriptive explanation be given the employee so as to permit him to identify that conduct giving rise to the dismissal so that the employee may make a response. Linton v. Frederick County Bd. of County Com\u2019rs, 964 F.2d 1436, 1440 (4th Cir. 1992).\nIn this case, on 1 June 1995, plaintiff met with Lisa King, his supervisor, and EMS Training Officer, Phyllis Paschall. At this time, Paschall gave plaintiff a copy of King\u2019s letter to Paschall, indicating that plaintiff had told King that he broke his finger while vacuuming, but had stated on his I.C. Form 19 injury report that he had broken his finger during and in the course of employment. Plaintiff denied these allegations. Plaintiff was informed that he had the opportunity to make a written statement, explaining his side of the story. Finally, Paschall gave plaintiff a short memorandum informing him that he was being suspended for three days, pending investigation of King\u2019s allegations, and instructing him to report to Paschall on 5 June 1995 for further discussion and action.\nAt plaintiff\u2019s 5 June 1995 meeting with King and Paschall, the three listened to a C-Comm tape of plaintiff\u2019s telephone calls on the night that plaintiff hurt his finger. While King and Paschall believed that the C-Comm tape substantiated King\u2019s allegations, plaintiff contended that they were misinterpreting the tape\u2019s contents. Again, plaintiff denied any allegation of wrongdoing. Plaintiff presented to Paschall a three-page, written incident report explaining his side of the story. Paschall concluded that plaintiff was being untruthful and terminated him. Paschall gave plaintiff a memorandum which summarized her investigation of the allegations against him and her reasons for the dismissal.\nWe conclude that the 1 and 5 June 1995 meetings between plaintiff and Paschall meet the pre-termination due process requirements. Accordingly, we now proceed with plaintiff\u2019s contention that he was deprived of a fair and impartial hearing during the post-termination review of his dismissal, because defendant Garrison did nothing to investigate the discrepancies in the record, and defendant Myers had been persuaded by others that plaintiff\u2019s evidence was redundant and a waste of time.\nB. Post-termination Due Process\nTo make a due process claim based upon the lack of impartiality of a decision maker, an employee \u201cmust show that the decision-making board or individual possesses a disqualifying personal bias.\u201d Leiphart, 80 N.C. App. at 354, 342 S.E.2d at 924 (citing Hortonville Dist. v. Hortonville Ed. Asso., 426 U.S. 482, 49 L. Ed. 2d 1 (1976)). Notably, this Court stated in Leiphart, that the \u201cmere appearance of impropriety, standing alone, is not sufficient grounds for disturbing [a decision to terminate an employee].\u201d Id. Nor does \u201c \u2018[m]ere familiarity with the facts of a case gained by an agency in the performance of its statutory role . . . disqualify the decision maker.\u2019 \u201d Id. at 354, 342 S.E.2d at 925 (quoting Hortonville, 426 U.S. at 493, 49 L. Ed. 2d at 9).\nIn the instant case, plaintiff\u2019s dismissal was first reviewed by defendant Garrison on 8 August 1995. Defendant Garrison reviewed all of the evidence relied upon by Paschall in her 5 June 1995 decision to terminate plaintiff from employment before upholding Paschall\u2019s decision to terminate plaintiff. In addition, plaintiff\u2019s attorney made an oral presentation and argument on plaintiff\u2019s behalf. Counsel submitted written statements and plaintiff was given an opportunity to speak on his own behalf. Finally, prior to this hearing, plaintiff was provided with all of the evidence relied upon by Paschall in making her decision to dismiss him, including written statements that indicated that several co-workers had heard plaintiff tell King that he had broken his finger while vacuuming, and a written statement of \u201cBuddy\u201d Aswell, suggesting that plaintiff may have broken his finger while engaging in \u201chorseplay\u201d with Amanda West. Aswell\u2019s statement noted that this \u201chorseplay\u201d had escalated into a fight.\nOn 3 October 1995, defendant Myers, the County Manager, held a \u201cfull-blown\u201d evidentiary hearing to review plaintiff\u2019s dismissal. At that hearing, plaintiff was again represented by counsel and given an opportunity to present evidence. Plaintiff\u2019s attorney was permitted to question and cross-examine all of the witnesses at the hearing; and again, plaintiff testified on his own behalf. After reviewing all of the evidence presented, defendant Myers, in a 27 October 1995 letter, informed plaintiff that his termination was being upheld based upon evidence that plaintiff had made a conscious effort to mislead his supervisors about the facts surrounding the injury to his finger.\nAlthough plaintiff argues that the inquiry by defendants Garrison and Myers into his dismissal was deficient, we cannot agree. The Garrison hearing was conducted in accordance with the County\u2019s personnel policy allowing such review. Further, plaintiff fails to present any real evidence that defendant Myers relied upon the opinions of the County Attorney or County Personnel Officer in making his decision, so as to affect his impartiality. Mere allegations without more, cannot serve to create a genuine issue of fact so as to prevent summary judgment. Messick, 110 N.C. App. at 713, 431 S.E.2d at 493 (citing Gudger v. Furniture, Inc., 30 N.C. App. 387, 389, 226 S.E.2d 835, 837 (1976)).\nAny inquiry into plaintiffs personnel records was permitted by defendant Garrison (defendant Myers was erroneously listed in the complaint) pursuant to section 153A-98 of our General Statutes. See N.C. Gen. Stat. \u00a7 153A-98 (1991). Further, any argument that defendant Myers somehow breached County personnel policy by permitting witnesses to remain in the room during his hearing, is specious as the County personnel policy specifically provides that \u201cwitnesses may attend\u201d an appeal hearing before the County Manager. Accordingly, we conclude that plaintiff received due process in not only his pre-termination hearings, but also in the post-termination hearings.\nAs plaintiffs breach of contract and due process claims against defendants Myers and Garrison fail, so too must any derivative claims of liability against the County. Further, plaintiffs claims for violation of General Statutes section 153A-98 and wrongful discharge are not argued on brief (or if argued, are without citation to authority) and are, therefore, deemed abandoned. N.C.R. App. 28(b)(5). In sum, because there are no triable issues of fact presented in this case, we affirm the trial court\u2019s order of summary judgment.\nAffirm.\nJudges GREENE and JOHN concur.", "type": "majority", "author": "TIMMONS-GOODSON, Judge." } ], "attorneys": [ "Puryear and Lingle, P.L.L.C., by David B. Puryear, Jr., for plaintiff-appellant.", "Womble Carlyle Sandridge & Rice, a Professional Limited Liability Company, by James R. Morgan, Jr., for defendants-appellees." ], "corrections": "", "head_matter": "KYLE R. PASCHAL, Plaintiff v. JERRY D. MYERS, Personally and in his Official Capacity as County Manager of Rockingham County, North Carolina; W. WAYNE GARRISON, Personally and in his Official Capacity as Director of Rockingham County Emergency Medical Services; and ROCKINGHAM COUNTY, a Political Subdivision of the State of North Carolina, Defendants\nNo. COA97-193\n(Filed 17 March 1998)\n1. Labor and Employment \u00a7 54 (NCI4th)\u2014 employee handbook \u2014 personnel policies \u2014 adoption as ordinance \u2014 not part of employment contract\nA county\u2019s personnel policies set forth in its employee handbook did not become a part of a former EMS employee\u2019s contract of employment because the county commissioners had adopted the personnel policies as an ordinance. Therefore, plaintiff EMS employee remained an employee at will, and summary judgment was properly entered against plaintiff on his breach of contract claim based on the county\u2019s alleged failure to follow its personnel policies in terminating his employment.\n2. Constitutional Law \u00a7 105 (NCI4th); Labor and Employment \u00a7 63 (NCI4th)\u2014 county EMS employee \u2014 property interest in employment \u2014 creation by ordinance\nA former county EMS employee showed an enforceable property interest in continued employment created by ordinance in that the county\u2019s employee handbook, which had been adopted as an ordinance, created the reasonable expectation of continued employment -within the meaning of the Due Process Clause.\n3. Public Officers and Employees \u00a7 35 (NCI4th)\u2014 county officials \u2014 sued in official capacities\nA county manager and a county EMS director were sued only in their official capacities where the complaint failed to assert any allegations to show that these defendants were acting in any manner other than in their official capacities, and there were no allegations that defendant\u2019s actions were corrupt or malicious or that defendants acted outside the scope of their duties.\n4. Labor and Employment \u00a7 69 (NCI4th)\u2014 pre-termination due process \u2014 meetings sufficient\nTwo meetings between plaintiff and county EMS officials prior to the termination of plaintiff\u2019s employment with the county EMS met due process requirements where, at the first meeting, the EMS training officer gave plaintiff a copy of a letter from plaintiff\u2019s supervisor alleging that plaintiff had filed a workers\u2019 compensation claim falsely stating that an injury to his finger was work-related, informed plaintiff that he could make a written statement explaining his side of the story, and gave plaintiff a memorandum suspending him for three days pending an investigation of the allegations in the letter; and at the second meeting, the training officer, supervisor and plaintiff listened to a tape recording of plaintiff\u2019s telephone calls on the night plaintiff hurt his finger, plaintiff presented a written incident report, and the training officer gave plaintiff a memorandum which summarized her investigation of the allegations against him and her reasons for his dismissal.\n5. Labor and Employment \u00a7 69 (NCI4th)\u2014 post-termination due process \u2014 hearings sufficient\nPlaintiff former county EMS employee was accorded post-termination due process where plaintiff was provided all of the evidence upon which an EMS training officer relied in deciding to dismiss him; the director of EMS reviewed plaintiff\u2019s dismissal at a hearing at which plaintiffs attorney made an oral presentation and submitted a written statement on plaintiffs behalf and plaintiff spoke in his own behalf; the county manager then conducted an evidentiary hearing at which plaintiff was represented by counsel, who presented evidence and cross-examined witnesses, and at which plaintiff testified in his own behalf; and plaintiff failed to present any real evidence that the county manager relied upon the opinions of the county attorney or county personnel officer in making his decision.\nAppeal by plaintiff from order entered 31 October 1996. by Judge Melzer A. Morgan, Jr. in Rockingham County Superior Court. Heard in the Court of Appeals 8 October 1997.\nPuryear and Lingle, P.L.L.C., by David B. Puryear, Jr., for plaintiff-appellant.\nWomble Carlyle Sandridge & Rice, a Professional Limited Liability Company, by James R. Morgan, Jr., for defendants-appellees." }, "file_name": "0023-01", "first_page_order": 63, "last_page_order": 73 }