{ "id": 11437867, "name": "EDWIN SWAIN, Plaintiff v. CAROLYN ELFLAND, individually and in her official capacity as an Assistant Vice Chancellor for Auxiliary Services of the University of North Carolina at Chapel Hill, JEFFREY McCRACKEN, individually and in his official capacity as Major in the Police Department of the University of North Carolina at Chapel Hill, DRAKE MAYNARD, individually and in his official capacity as Human Resources Administrator for the University of North Carolina at Chapel Hill, and OTHER UNKNOWN UNIVERSITY OFFICIALS, and the UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL, Defendants", "name_abbreviation": "Swain v. Elfland", "decision_date": "2001-08-07", "docket_number": "No. COA00-258", "first_page": "383", "last_page": "391", "citations": [ { "type": "official", "cite": "145 N.C. App. 383" } ], "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": "121 L. Ed. 2d 431", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1992, "opinion_index": 0 }, { "cite": "506 U.S. 985", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12035616, 12035130, 12035173, 12035238, 12035081, 12035561, 12035342, 12034992, 12035285, 12035509, 12035449, 12035034, 12035391 ], "year": 1992, "pin_cites": [ { "page": "616" } ], "opinion_index": 0, "case_paths": [ "/us/506/0985-13", "/us/506/0985-04", "/us/506/0985-05", "/us/506/0985-06", "/us/506/0985-03", "/us/506/0985-12", "/us/506/0985-08", "/us/506/0985-01", "/us/506/0985-07", "/us/506/0985-11", "/us/506/0985-10", "/us/506/0985-02", "/us/506/0985-09" ] }, { "cite": "413 S.E.2d 276", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "293", "parenthetical": "A claim for monetary relief under the North Carolina Constitution can be brought against a person only in their official capacity." } ], "opinion_index": 0 }, { "cite": "330 N.C. 761", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2511641 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/330/0761-01" ] }, { "cite": "478 S.E.2d 218", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "220" } ], "opinion_index": 0 }, { "cite": "124 N.C. App. 613", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11890238 ], "year": 1996, "pin_cites": [ { "page": "616" } ], "opinion_index": 0, "case_paths": [ "/nc-app/124/0613-01" ] }, { "cite": "350 N.C. 89", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132320 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc/350/0089-01" ] }, { "cite": "501 S.E.2d 99", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "103" } ], "opinion_index": 0 }, { "cite": "129 N.C. App. 649", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11652142 ], "year": 1998, "pin_cites": [ { "page": "655" } ], "opinion_index": 0, "case_paths": [ "/nc-app/129/0649-01" ] }, { "cite": "179 S.E.2d 858", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "861" } ], "opinion_index": 0 }, { "cite": "10 N.C. App. 653", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555234 ], "year": 1971, "pin_cites": [ { "page": "657" } ], "opinion_index": 0, "case_paths": [ "/nc-app/10/0653-01" ] }, { "cite": "421 S.E.2d 812", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1992, "pin_cites": [ { "page": "815" }, { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "107 N.C. App. 710", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527932 ], "year": 1992, "pin_cites": [ { "page": "715" } ], "opinion_index": 0, "case_paths": [ "/nc-app/107/0710-01" ] }, { "cite": "149 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1966, "pin_cites": [ { "page": "5", "parenthetical": "\"If possible, the language of a statute will be interpreted so as to avoid an absurd consequence. A statute is never to be construed so as to require an impossibility if that result can be avoided by another fair and reasonable construction of its terms.\"" }, { "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "267 N.C. 665", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560451 ], "year": 1966, "pin_cites": [ { "page": "671", "parenthetical": "\"If possible, the language of a statute will be interpreted so as to avoid an absurd consequence. A statute is never to be construed so as to require an impossibility if that result can be avoided by another fair and reasonable construction of its terms.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/267/0665-01" ] }, { "cite": "478 U.S. 788", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6213232 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "797", "parenthetical": "\"[I]t is sound policy to apply principles of issue preclusion to the fact-finding of administrative bodies acting in a judicial capacity.\"" }, { "page": "645", "parenthetical": "\"[I]t is sound policy to apply principles of issue preclusion to the fact-finding of administrative bodies acting in a judicial capacity.\"" } ], "opinion_index": 0, "case_paths": [ "/us/478/0788-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 126-34.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "year": 1999, "pin_cites": [ { "page": "(a)(7)" }, { "page": "(a)(7)" }, { "page": "(a)(7)" }, { "page": "(a)(7)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 126-86", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 1999, "opinion_index": 0 }, { "cite": "354 S.E.2d 737", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "743" } ], "opinion_index": 0 }, { "cite": "85 N.C. App. 292", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12169853 ], "year": 1987, "pin_cites": [ { "page": "301" } ], "opinion_index": 0, "case_paths": [ "/nc-app/85/0292-01" ] }, { "cite": "496 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "7", "parenthetical": "quoting Fox v. Wilson, 85 N.C. App. 292, 301, 354 S.E.2d 737, 743 (1987)" } ], "opinion_index": 0 }, { "cite": "128 N.C. App. 450", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11655385 ], "year": 1998, "pin_cites": [ { "page": "459", "parenthetical": "quoting Fox v. Wilson, 85 N.C. App. 292, 301, 354 S.E.2d 737, 743 (1987)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/128/0450-01" ] }, { "cite": "511 S.E.2d 304", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1999, "opinion_index": 0 }, { "cite": "350 N.C. 90", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132221 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc/350/0090-01" ] }, { "cite": "276 S.E.2d 325", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "337" } ], "opinion_index": 0 }, { "cite": "302 N.C. 437", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567370 ], "year": 1981, "pin_cites": [ { "page": "456" } ], "opinion_index": 0, "case_paths": [ "/nc/302/0437-01" ] }, { "cite": "501 S.E.2d 91", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "96", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "129 N.C. App. 586", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11651702 ], "year": 1998, "pin_cites": [ { "page": "592", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/129/0586-01" ] }, { "cite": "131 S.E.2d 27", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "pin_cites": [ { "page": "30", "parenthetical": "\"A civil action for conspiracy is an action for damages resulting from acts committed by one or more of the conspirators pursuant to the formed conspiracy ....\"" } ], "opinion_index": 0 }, { "cite": "259 N.C. 473", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561076 ], "year": 1963, "pin_cites": [ { "page": "476", "parenthetical": "\"A civil action for conspiracy is an action for damages resulting from acts committed by one or more of the conspirators pursuant to the formed conspiracy ....\"" } ], "opinion_index": 0, "case_paths": [ "/nc/259/0473-01" ] }, { "cite": "546 S.E.2d 100", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "353 N.C. 265", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135678, 135926, 135611, 135676, 135870 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/353/0265-01", "/nc/353/0265-05", "/nc/353/0265-02", "/nc/353/0265-04", "/nc/353/0265-03" ] }, { "cite": "534 S.E.2d 233", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "236" } ], "opinion_index": 0 }, { "cite": "139 N.C. App. 595", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9497365 ], "year": 2000, "pin_cites": [ { "page": "599" } ], "opinion_index": 0, "case_paths": [ "/nc-app/139/0595-01" ] }, { "cite": "421 S.E.2d 348", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "332 N.C. 345", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2505409, 2504968, 2504747, 2505141, 2504699 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/332/0345-01", "/nc/332/0345-02", "/nc/332/0345-05", "/nc/332/0345-04", "/nc/332/0345-03" ] }, { "cite": "418 S.E.2d 276", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "284" } ], "opinion_index": 0 }, { "cite": "106 N.C. App. 496", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 5314074 ], "year": 1992, "pin_cites": [ { "page": "510" } ], "opinion_index": 0, "case_paths": [ "/nc-app/106/0496-01" ] }, { "cite": "510 S.E.2d 170", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "175" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11236803 ], "year": 1999, "pin_cites": [ { "page": "9" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0001-01" ] }, { "cite": "745 F.2d 868", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 593075 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "877-78" } ], "opinion_index": 0, "case_paths": [ "/f2d/745/0868-01" ] }, { "cite": "410 S.E.2d 232", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "234", "parenthetical": "quoting Jurgensen v. Fairfax County, 745 F.2d 868, 877-78 (4th Cir. 1984)" } ], "opinion_index": 0 }, { "cite": "104 N.C. App. 522", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522673 ], "year": 1991, "pin_cites": [ { "page": "525-26", "parenthetical": "quoting Jurgensen v. Fairfax County, 745 F.2d 868, 877-78 (4th Cir. 1984)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/104/0522-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 143-422.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1999, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 126-85", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1999, "opinion_index": 0 } ], "analysis": { "cardinality": 961, "char_count": 21199, "ocr_confidence": 0.775, "pagerank": { "raw": 4.896543727475347e-07, "percentile": 0.9336571359951874 }, "sha256": "1ce41f8ae0d5c28543e4e70e38a9cd31c82f11488b3f9af527d708632f04cee1", "simhash": "1:8701f1a8673f1e54", "word_count": 3303 }, "last_updated": "2023-07-14T19:02:14.256422+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge EAGLES and Judge HUDSON concur." ], "parties": [ "EDWIN SWAIN, Plaintiff v. CAROLYN ELFLAND, individually and in her official capacity as an Assistant Vice Chancellor for Auxiliary Services of the University of North Carolina at Chapel Hill, JEFFREY McCRACKEN, individually and in his official capacity as Major in the Police Department of the University of North Carolina at Chapel Hill, DRAKE MAYNARD, individually and in his official capacity as Human Resources Administrator for the University of North Carolina at Chapel Hill, and OTHER UNKNOWN UNIVERSITY OFFICIALS, and the UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL, Defendants" ], "opinions": [ { "text": "SMITH, Judge.\nThe plaintiff, Lt. Edwin Swain, Jr., is employed as a police officer at the University of North Carolina at Chapel Hill. On 27 September 1997, plaintiff was assigned to an \u201cInterdiction and Arrest\u201d team at a football game at Kenan Stadium. The primary purpose of the team was to enforce the alcohol laws.\nAfter the game, plaintiff observed a young woman, Caroline Hancock, holding what appeared to be a malt beverage. When plaintiff approached Hancock, a member of Hancock\u2019s party alerted her to plaintiffs presence. Hancock took the bottle and placed it in the back of a truck. Plaintiff told Hancock he saw her in possession of a malt beverage, asked her if it was a beer, and she replied affirmatively. Plaintiff then requested Hancock\u2019s driver\u2019s license, which listed her age as eighteen years old. Plaintiff proceeded to write her a citation for underage drinking. Soon thereafter, Hancock\u2019s father approached, and plaintiff informed him that he was citing Hancock. Hancock\u2019s father, Billy Armfield, was a member of the University Board of Trustees. Armfield asked plaintiff not to issue the citation, but plaintiff declined the request. Plaintiff then left and headed back to the police department.\nAfter the game, Armfield protested his daughter\u2019s citation to University officials. Plaintiff\u2019s superior, Major Jeffrey McCracken, later communicated to plaintiff that there were questions regarding plaintiff\u2019s probable cause to issue the citation. On 29 September 1997, plaintiff reported for duty and entered Hancock\u2019s citation into the computer. According to plaintiff, Major McCracken ordered him to turn over the copies of the citation to him, and tried to persuade him to withdraw the citation. The citation was later pulled from a stack of citations ready for transfer to a magistrate.\nPlaintiff accused his superiors of obstruction of justice and refused to cooperate with them. On 31 September 1997, the citation was returned to the \u201cjudicial stream\u201d and forwarded to the magistrate. Soon thereafter, plaintiff reported the alleged \u201ccoverup\u201d to the media, and several news accounts appeared in the press. Plaintiff later filed a grievance to protest his supervisor\u2019s decisions, and requested an investigation into what he believed was improper police procedures and obstruction of justice. Plaintiff\u2019s grievances were denied.\nOn 30 October 1997, Major McCracken received information that plaintiff, while on duty, had visited the offices of the Chapel Hill News. Plaintiff was seen there between the hours of noon and 2:00 p.m., and he was not there on official UNC-CH business. Major McCracken later confirmed this information with Anne England, an employee at the newspaper. Plaintiff had not informed his dispatcher of his location during this time period. Major McCracken did not immediately confront plaintiff with this information and instead decided to wait and see whether plaintiff claimed the time as personal time on his timecard.\nAfter plaintiff submitted his timecard, Major McCracken asked him about the time he spent at the newspaper on 30 October 1997. Plaintiff had not claimed the time as personal leave. Plaintiff\u2019s reply was \u201cinteresting\u201d without further elaboration. Major McCracken then gave plaintiff the opportunity to change his timecard, but plaintiff refused. A pre-disciplinary conference was held on 17 November 1997, and plaintiff declined to provide any explanation for his time-card. On 19 November 1997, Major McCracken fired plaintiff.\nPlaintiff filed the instant lawsuit on or about 2 December 1997 alleging: (1) violation of N.C. Gen. Stat. \u00a7 126-85 (1999), the \u201cWhistleblower Act\u201d; (2) wrongful discharge in violation of public policy and racial discrimination in violation of N.C. Gen. Stat. \u00a7 143-422.2 (1999); (3) violation of his state constitutional rights to free speech; and (4) a conspiracy by Carolyn Elfland, Major McCracken, and Drake Maynard to unlawfully discharge plaintiff from his employment. Shortly after plaintiff filed this action, his dismissal was rescinded by Chancellor Michael Hooker. Chancellor Hooker adopted the findings of an independent investigation which found there was just cause for discipline, but that dismissal was too harsh a penalty. Plaintiff was reinstated but suspended for one week without pay.\nOn or about 23 December 1997, plaintiff filed a petition for a contested case hearing in the North Carolina Office of Administrative Hearings. Plaintiff alleged his suspension was without cause, and was the result of racial discrimination and retaliation. A hearing was held on 11-14 May 1998. On 31 July 1998, Judge Fred G. Morrison issued a Recommended Decision concluding that defendants had just cause to discipline plaintiff for unacceptable personal conduct, and that plaintiff was not the victim of illegal discrimination or retaliation. Accordingly, the suspension of plaintiff without pay for one week was affirmed. On 18 November 1998, the State Personnel Commission upheld the Recommended Decision. Plaintiff did not appeal.\nOn 27 October 1999, defendants moved for summary judgment in the instant case. On 13 December 1999, the trial court granted summary judgment to defendants. The trial court concluded that: (1) plaintiffs Whistleblower claim was dismissed due to plaintiffs failure to exhaust his administrative remedies; (2) plaintiffs wrongful discharge claim was dismissed due to plaintiffs failure to exhaust his administrative remedies; (3) plaintiffs state constitutional claims were dismissed because plaintiff had an adequate state remedy available, and thus his claim was lacking an essential element; and (4) summary judgment on all claims in the complaint was allowed on the ground that there was no genuine issue of material fact and defendants were entitled to judgment as a matter of law. Plaintiff appealed.\nI.\nWe first consider whether the trial court erred in dismissing plaintiffs complaint on summary judgment because there was no genuine issue as to any material fact. Specifically, plaintiff challenges the trial court\u2019s dismissal of his claim of wrongful discharge, and his allegation that defendants conspired to unlawfully discharge him.\nTo establish a cause of action for wrongful discharge or demotion in violation of his right to freedom of speech, plaintiff must forecast sufficient evidence \u201c \u2018that the speech complained of qualified as protected speech or activity\u2019 \u201d and \u201c \u2018that such protected speech or activity was the \u2018motivating\u2019 or \u2018but for\u2019 cause for his discharge or demotion.\u2019 \u201d Warren v. New Hanover County Bd. of Education, 104 N.C. App. 522, 525-26, 410 S.E.2d 232, 234 (1991) (quoting Jurgensen v. Fairfax County, 745 F.2d 868, 877-78 (4th Cir. 1984)). \u201c \u2018[T]he resolution of these two critical issues is a matter of law and not of fact.\u2019 \u201d Id. See also Evans v. Cowan, 132 N.C. App. 1, 9, 510 S.E.2d 170, 175 (1999). The only motivation established by the competent evidence in the case sub judice was that plaintiff was dismissed due to the discrepancies in his timecard and his refusal to either amend his timecard or provide an explanation for the discrepancies.\nMajor McCracken, who was plaintiff\u2019s supervisor, and made the decision to dismiss plaintiff, testified that plaintiff\u2019s grievances over the ticket had \u201cnothing to do\u201d with the decision to dismiss plaintiff. In fact, Major McCracken testified that he took disciplinary action against plaintiff in spite of the publicity, not because of it. Major McCracken admitted that plaintiff\u2019s submission of the falsified time-card created a \u201cterrible timing\u201d problem, but that he \u201chad to act on it.\u201d Chancellor Hooker testified that he concluded that plaintiff had violated policies, and although he believed the punishment of dismissal was too severe, there was no evidence to support a conclusion that any UNC-CH official was motivated to retaliate against plaintiff because he had gone to the newspapers. Chancellor Hooker also stated that the disciplinary action against plaintiff was in spite of all the attendant publicity, and not because of it.\n\u201cAlthough evidence of retaliation in a case such as this one may often be completely circumstantial, the causal nexus between protected activity and retaliatory discharge must be something more than speculation.\u201d Lenzer v. Flaherty, 106 N.C. App. 496, 510, 418 S.E.2d 276, 284, disc. review denied, 332 N.C. 345, 421 S.E.2d 348 (1992). Here, plaintiff presented nothing more than mere conjecture to support his allegations of retaliation. Accordingly, we conclude that the trial court properly dismissed plaintiff\u2019s retaliatory discharge claim.\nBecause plaintiff\u2019s underlying claims were properly dismissed, his allegation that defendants conspired to unlawfully discharge him must likewise fail. \u201cA claim for conspiracy . . . cannot succeed without a successful underlying claim . . . .\u201d Jay Group, Ltd. v. Glasgow, 139 N.C. App. 595, 599, 534 S.E.2d 233, 236, disc. review denied, 353 N.C. 265, 546 S.E.2d 100 (2000). See Burton v. Dixon, 259 N.C. 473, 476, 131 S.E.2d 27, 30 (1963) (\u201cA civil action for conspiracy is an action for damages resulting from acts committed by one or more of the conspirators pursuant to the formed conspiracy ....\u201d).\nAssuming arguendo that plaintiff had succeeded on his underlying claims, plaintiff has not pointed to any competent evidence in the record to support his allegations that defendants conspired to unlawfully discharge him, and our review of the record discloses no such evidence. This Court has stated:\nA civil conspiracy claim consists of: (1) an agreement between two or more persons; (2) to do an unlawful act or to do a lawful act in an unlawful way; (3) which agreement resulted in injury to the plaintiff. Although an action for civil conspiracy may be established by circumstantial evidence, sufficient evidence of the agreement must exist \u201cto create more than a suspicion or conjecture in order to justify submission of the issue to a jury.\u201d\nBoyd v. Drum, 129 N.C. App. 586, 592, 501 S.E.2d 91, 96 (1998) (citations omitted) (quoting Dickens v. Puryear, 302 N.C. 437, 456, 276 S.E.2d 325, 337 (1981)), aff'd, 350 N.C. 90, 511 S.E.2d 304 (1999). Where such an agreement exists, \u201c \u2018all of the conspirators are liable, jointly and severally, for the act of any one of them done in furtherance of the agreement.\u2019 \u201d Johnson v. First Union Corp., 128 N.C. App. 450, 459, 496 S.E.2d 1, 7 (1998) (quoting Fox v. Wilson, 85 N.C. App. 292, 301, 354 S.E.2d 737, 743 (1987)). In the case at bar, there is no evidence of any agreement among defendants to unlawfully discharge plaintiff. Carolyn Elfland testified that she did not make the decision to dismiss plaintiff, and did not instruct Major McCracken to dismiss him. Elfland was the Associate Chancellor for Auxiliary Services at the University and Major McCracken\u2019s supervisor. Drake Maynard, Senior Director of Human Resources, testified that he provided information about the disciplinary process to Elfland and Major McCracken, but played no role in the decision to dismiss plaintiff. Thus, there is no evidence that defendants acted in concert to willfully and intentionally discredit and discharge plaintiff in violation of his rights, only plaintiff\u2019s allegations based on mere suspicion. This assignment of error is overruled.\nII.\nWe next consider whether the trial court erred in dismissing plaintiff\u2019s \u201cWhistleblower\u201d claim on the ground that plaintiff failed to exhaust his administrative remedies. Plaintiff argues that N.C. Gen. Stat. \u00a7 126-86 (1999) expressly authorizes superior court jurisdiction over a state employee\u2019s claim of retaliation for reports of governmental wrongs. Plaintiff asserts that he chose to sue in superior court pursuant to N.C. Gen. Stat. 126-86, and there is \u201cno exhaustion condition precedent.\u201d We are not persuaded by plaintiffs argument.\nTwo statutes provide avenues to redress violations of the Whistleblower statute. N.C. Gen. Stat. \u00a7 126-86 states that \u201c[a]ny State employee injured by a violation of G.S. 126-85 may maintain an action in superior court . . . .\u201d N.C. Gen. Stat. \u00a7 126-34.1(a)(7) (1999) provides that a State employee may file in the Office of Administrative Hearings a contested case for \u201c[a]ny retaliatory personnel action that violates G.S. 126-85.\u201d Here, plaintiff alleged in his petition for a Contested Case Hearing that he had been retaliated against. Thus, it is without question that he exercised his right under N.C. Gen. Stat. \u00a7 126-34.1(a)(7) to seek relief from the State Personnel Commission of the alleged violation of the Whistleblower Act.\nUnder plaintiff\u2019s interpretation of the statutes at issue, he could maintain an administrative action and an action in superior court simultaneously. However, this would allow plaintiff two bites of the apple, could lead to the possibility that different forums would reach opposite decisions, as well as engender needless litigation in violation of the principles of collateral estoppel. See University of Tennessee v. Elliott, 478 U.S. 788, 797, 92 L. Ed. 2d 635, 645 (1986) (\u201c[I]t is sound policy to apply principles of issue preclusion to the fact-finding of administrative bodies acting in a judicial capacity.\u201d). The only reasonable interpretation of these statutes is that a state employee may choose to pursue a Whistleblower claim in either forum, but not both. See Hobbs v. Moore County, 267 N.C. 665, 671, 149 S.E.2d 1, 5 (1966) (\u201cIf possible, the language of a statute will be interpreted so as to avoid an absurd consequence. A statute is never to be construed so as to require an impossibility if that result can be avoided by another fair and reasonable construction of its terms.\u201d). Id. (citations omitted).\nPlaintiff chose to pursue an administrative action, the administrative law judge ruled against plaintiff, and plaintiff did not seek judicial review. See Huang v. N.C. State University, 107 N.C. App. 710, 715, 421 S.E.2d 812, 815 (1992) (\u201c[T]he policy of requiring the exhaustion of administrative remedies prior to the filing of court actions \u2018does not require merely the initiation of prescribed administrative procedures, but that they should be pursued to their appropriate conclusion and their final outcome awaited before seeking judicial intervention . . . .\u2019 \u201d). Id. (quoting 2 Am. Jur. 2d Administrative Law \u00a7 608 (1962)). Additionally, plaintiff did not allege in his complaint that exhaustion of his administrative remedy would be futile. \u201cThe burden of showing the inadequacy of the administrative remedy is on the party claiming the inadequacy, and the party making such a claim must include such allegation in the complaint.\u201d Id. (citation omitted). Accordingly, we conclude that plaintiff has failed to exhaust his administrative remedies for this claim, and it was properly dismissed.\nEven if we were to assume arguendo that the two provisions in question here are in pari materia, but are in irreconcilable conflict, the provisions of N.C. Gen. Stat. \u00a7 126-34.1(a)(7) would control, because it is the more recent enactment. This Court has stated:\nStatutes in pari materia, although in apparent conflict or containing apparent inconsistencies, should, as far as reasonably possible, be construed in harmony with each other so as to give force and effect to each; but if there is an irreconcilable conflict, the latest enactment will control, or will be regarded as an exception to, or qualification of, the prior statute.\nState v. Hutson, 10 N.C. App. 653, 657, 179 S.E.2d 858, 861 (1971); see also Caudill v. Dellinger, 129 N.C. App. 649, 655, 501 S.E.2d 99, 103 (1998), aff\u2019d in part, dismissed in part, 350 N.C. 89, 511 S.E.2d 304 (1999). Thus, N.C. Gen. Stat. \u00a7 126-34.1(a)(7) would control and plaintiff\u2019s exclusive remedy would be administrative.\nIII.\nWe next consider whether the trial court erred in dismissing plaintiffs state constitutional claim on the grounds that plaintiff had an adequate state remedy available to him, and thus, plaintiff was lacking an essential element of his claim. Plaintiff alleged in his complaint that his discharge \u201cwas made to chill his free speech rights.\u201d Plaintiff contended that \u201c[t]he retaliatory discharge described here violates the public\u2019s interest in free expression to make decisions about public funds and policies. If this retaliatory discharge is declared constitutional, it would create a chilling wind against plaintiff, other police officers, and other employees of this and other public institutions.\u201d Plaintiff then stated he was bringing his claim directly against defendants, under the North Carolina Constitution, because no other legal remedy was available to him. We disagree with plaintiff\u2019s arguments.\nPlaintiff\u2019s complaint seeks a monetary remedy for alleged state constitutional violations by defendants. \u201cSuch a claim is commonly called a \u2018Corum claim.\u2019 \u201d Ware v. Fort, 124 N.C. App. 613, 616, 478 S.E.2d 218, 220 (1996). See Corum v. University of North Carolina, 330 N.C. 761, 413 S.E.2d 276, cert. denied sub. nom. Durham v. Corum, 506 U.S. 985, 616, 121 L. Ed. 2d 431 (1992). To the extent that plaintiff alleges a Corum claim against defendants in their individual capacity, the claim must be dismissed. See id. at 789, 413 S.E.2d at 293 (A claim for monetary relief under the North Carolina Constitution can be brought against a person only in their official capacity.).\nTo the extent that plaintiff sued defendants in their official capacity, we conclude that plaintiff had an adequate state remedy available to him, and in fact pursued that remedy. Plaintiff raised his free speech claim at his administrative hearing, both explicitly and by implication under a \u201cjust cause\u201d analysis. Plaintiff alleged he was disciplined in retaliation for speaking out on an issue of public concern, in violation of his state constitutional right to free speech. However, the administrative law judge concluded that there was just cause for the discipline against plaintiff, that plaintiff was not a victim of retaliation, and that plaintiff was not retaliated against for exercising his right to free speech. The State Personnel Commission adopted the administrative law judge\u2019s decision, and plaintiff did not appeal. Accordingly, we hold that plaintiffs \u201cCorum claim\u201d was properly dismissed by the trial court.\nAffirmed.\nChief Judge EAGLES and Judge HUDSON concur.", "type": "majority", "author": "SMITH, Judge." } ], "attorneys": [ "McSurely & Osment, by Alan McSurely and Ashley Osment, for plaintiff appellant.", "Attorney General Michael F. Easley, by Senior Deputy Attorney General Ann Reed, Assistant Attorneys General Bruce S. Ambrose, and Richard E. Slipsky, for defendant appellees." ], "corrections": "", "head_matter": "EDWIN SWAIN, Plaintiff v. CAROLYN ELFLAND, individually and in her official capacity as an Assistant Vice Chancellor for Auxiliary Services of the University of North Carolina at Chapel Hill, JEFFREY McCRACKEN, individually and in his official capacity as Major in the Police Department of the University of North Carolina at Chapel Hill, DRAKE MAYNARD, individually and in his official capacity as Human Resources Administrator for the University of North Carolina at Chapel Hill, and OTHER UNKNOWN UNIVERSITY OFFICIALS, and the UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL, Defendants\nNo. COA00-258\n(Filed 7 August 2001)\n1. Employer and Employee\u2014 wrongful discharge \u2014 retaliation \u2014 conj ecture\nThe trial court did not err by granting summary judgment for defendants on wrongful discharge and conspiracy claims by a UNC police officer who issued an underage drinking citation to the daughter of a University trustee. Plaintiff presented nothing more than conjecture to support his allegations of retaliation and there was no evidence of any agreement to unlawfully discharge plaintiff.\n2. Public Officers and Employees\u2014 whistleblower claim\u2014 failure to exhaust administrative remedies\nThe trial court did not err by dismissing a UNC police officer\u2019s whistleblower claim for failure to exhaust administrative remedies where there was no question that he had unsuccessfully exercised his right to seek relief from the State Personnel Commission under N.C.G.S. \u00a7 126-34.1(a)(7) and did not seek judicial review. Although plaintiff contends that he could maintain an administrative action under N.C.G.S. \u00a7 126-34.1(a) (7) and an action in superior court under N.C.G.S. \u00a7 126-85, the only reasonable interpretation of these statutes is that a state employee may choose to pursue a whistleblower claim in either forum, but not both. Moreover, plaintiff did not include the required allegations that exhaustion of his administrative remedy would be futile, and, even if the two statutory provisions are assumed to be in para materia, N.C.G.S. \u00a7 126-34.1(a)(7) controls as the more recent enactment.\n3. Constitutional Law\u2014 free speech \u2014 official capacities\u2014 adequate state remedy\nA dismissed UNC police officer\u2019s state constitutional claim was properly dismissed where plaintiff brought a claim for alleged constitutional violations against defendants in their official capacities and had an adequate state remedy available to him.\nAppeal by plaintiff from order entered 13 December 1999 by Judge James C. Davis in Orange County Superior Court. Heard in the Court of Appeals 22 January 2001.\nMcSurely & Osment, by Alan McSurely and Ashley Osment, for plaintiff appellant.\nAttorney General Michael F. Easley, by Senior Deputy Attorney General Ann Reed, Assistant Attorneys General Bruce S. Ambrose, and Richard E. Slipsky, for defendant appellees." }, "file_name": "0383-01", "first_page_order": 413, "last_page_order": 421 }