{ "id": 8915000, "name": "DAN PHILLIPS, Plaintiff v. IKE GRAY, individually and in his official capacity as Sheriff of Chatham County, RANDY KECK, in his official capacity as Chief Deputy Sheriff of Chatham County, Defendants", "name_abbreviation": "Phillips v. Gray", "decision_date": "2004-02-17", "docket_number": "No. COA02-1670", "first_page": "52", "last_page": "58", "citations": [ { "type": "official", "cite": "163 N.C. App. 52" } ], "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": "413 S.E.2d 276", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1992, "pin_cites": [ { "page": "289" }, { "page": "289" } ], "opinion_index": 0 }, { "cite": "330 N.C. 761", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2511641 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "782" }, { "page": "783" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0761-01" ] }, { "cite": "550 S.E.2d 530", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "533", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "145 N.C. App. 383", "category": "reporters:state", "reporter": "N.C. 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App.", "case_ids": [ 8551677 ], "year": 1980, "pin_cites": [ { "page": "656" } ], "opinion_index": 0, "case_paths": [ "/nc-app/47/0655-01" ] } ], "analysis": { "cardinality": 652, "char_count": 13377, "ocr_confidence": 0.755, "pagerank": { "raw": 1.2445816564302607e-07, "percentile": 0.6086934025883363 }, "sha256": "b8bd0fc6b21669eeefeaa655332fbc04241389653c4099ed9f409a4581e81b13", "simhash": "1:2be07c4e139b467c", "word_count": 2066 }, "last_updated": "2023-07-14T15:27:37.331987+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUDSON and ELMORE concur." ], "parties": [ "DAN PHILLIPS, Plaintiff v. IKE GRAY, individually and in his official capacity as Sheriff of Chatham County, RANDY KECK, in his official capacity as Chief Deputy Sheriff of Chatham County, Defendants" ], "opinions": [ { "text": "TIMMONS-GOODSON, Judge.\nDan Phillips (\u201cplaintiff\u2019) appeals the trial court\u2019s order of summary judgment in favor of defendants Sheriff Ike Gray (\u201cSheriff Gray\u201d) and Randy Keck (\u201cKeck\u201d) (collectively as \u201cdefendants\u201d). For the reasons stated herein, we affirm the decision of the trial court to grant summary judgment for plaintiffs claims against defendants in their official capacities and plaintiff\u2019s free speech claim. We, however, reverse and remand the trial court\u2019s grant of summary judgment for plaintiffs claim against defendant Sheriff Gray in his individual capacity.\nThe record tended to show that plaintiff was a School Resource Officer (\u201cSRO\u201d) with the Chatham County Sheriffs Department. Defendants are the sheriff (Gray) and chief deputy sheriff (Keck) of Chatham County.\nPlaintiff acted as the SRO for Chatham Central High School (\u201cCCHS\u201d) for the majority of the time pertinent to this appeal. While serving as the SRO, plaintiff witnessed a racially hostile environment at CCHS perpetuated by students and school administrators. Plaintiff made multiple attempts to discuss the hostile environment with his then supervisor, Sheriff Don Whitt (\u201cSheriff Whitt\u201d). Sheriff Whitt informed plaintiff that he did not \u201cwant to hear a damn thing [plaintiff had] to say\u201d about the school.\nThe following summer, an unknown person left an audiocassette in the mailbox of the Chatham County Board of Commissioners Chair Richard Givens. The tape contained a conversation between the principal of CCHS, William Fowler (\u201cFowler\u201d), and an unknown person. During said conversation, Fowler made several racial slurs. Fowler subsequently resigned as principal of CCHS.\nPlaintiff\u2019s wife, Dorthy Ritter Phillips (\u201cMrs. Phillips\u201d), is the principal of a local elementary school. In her affidavit for the court, Mrs. Phillips stated that a colleague of hers informed her that Fowler and Sheriff Whitt had made a deal to \u201ctake care of the one who had made the tape\u201d and that plaintiff would not be re-sworn as a deputy when the new sheriff, Sheriff Gray, took office.\nA few months later, plaintiff was informed that marijuana was stolen from a landfill used by the Chatham County Sheriffs Department to destroy and/or hold marijuana in the County\u2019s possession. The informant explained to plaintiff that he attempted to provide Keck with this information, but Keck \u201ccursed him.\u201d Plaintiff met with the informant and agents from the FBI and the U.S. Customs. Sheriff Whitt asserted in his affidavit that he had contacted the FBI about the missing marijuana.\nSheriff Whitt retired as sheriff of Chatham County on 30 November 2001. Sheriff Gray was sworn in as sheriff and plaintiff was re-sworn as a deputy. Shortly thereafter, Sheriff Gray informed Keck that there was an Internal Affairs investigation of plaintiff.\nRobert Lefler, an officer employed by the Division of Motor Vehicles Law Enforcement and the officer who arranged the meeting with the FBI and U.S. Customs, received a call from a U.S. Customs agent asking Lefler to give plaintiff a \u201cheads up\u201d that Keck planned to fire him. In mid-January 2001, Keck asked plaintiff to take a polygraph exam regarding the audiotape of Fowler. In Keck\u2019s affidavit, he stated that plaintiff became enraged when asked to take a polygraph. Keck further stated that plaintiff thereafter threatened to sue him. In plaintiff\u2019s affidavit, plaintiff asserts that he was willing to take the polygraph as long as standard operating procedure was followed and his accuser was also required to submit to a polygraph.\nDeputy Seagroves, plaintiff\u2019s successor as SRO at CCHS, asserts in his affidavit that Keck also asked him to take a polygraph. Deputy Seagroves informed Keck that he would submit to a polygraph if standard operating procedure was followed. Neither plaintiff nor Deputy Seagroves took a polygraph test.\nThe next day Sheriff Gray discharged plaintiff. Plaintiff brought a wrongful discharge claim against Sheriff Gray and Keck in their official capacities and against Sheriff Gray in his individual capacity. The trial court granted defendants\u2019 motion for summary judgment and dismissed all claims against defendants with prejudice.\nPlaintiff assigns error to the trial court\u2019s order of summary judgment to defendants. Plaintiff specifically argues that there are genuine issues of material fact regarding whether: (1) sovereign immunity bars wrongful discharge claims against defendants; (2) plaintiff\u2019s wrongful discharge claim is based on recognized public policy; and, (3) plaintiff was discharged in violation of his free speech rights under the North Carolina Constitution. We conclude that summary judgment was appropriate for plaintiffs claims against defendants in their official capacities, but not against Sheriff Gray in his individual capacity. We further conclude that the trial court\u2019s order of summary judgment was proper regarding plaintiff\u2019s free speech claim.\nSummary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c) (2001); Gregory v. Perdue, Inc., 47 N.C. App. 655, 656, 267 S.E.2d 584, 586 (1980). It is not the court\u2019s function to decide questions of fact when ruling on a motion for summary judgment; rather, the moving party must establish that there is an absence of a triable issue of fact. Moore v. Bryson, 11 N.C. App. 260, 262, 181 S.E.2d 113, 114 (1971). All evidence must be considered in the light most favorable to the non-moving party. Burrow v. Westinghouse Electric Corp., 88 N.C. App. 347, 350, 363 S.E.2d 215, 217 (1988).\nSovereign immunity ordinarily grants the state, its counties, and its public officials, in their official capacity, an unqualified and absolute immunity from law suits. Paquette v. County of Durham, 155 N.C. App. 415, 418, 573 S.E.2d 715, 717 (2002), disc. review denied 357 N.C. 165, 580 S.E.2d 695 (2003). \u201cThe rule of sovereign immunity applies when the governmental entity is being sued for the performance of a governmental, rather than proprietary, function.\u201d Id. The complaint must specifically allege a waiver of governmental immunity to overcome a defense of sovereign immunity. Clark v. Burke County, 117 N.C. App. 85, 88, 450 S.E.2d 747, 748 (1994). Absent such an allegation, the complaint fails to state a cause of action. Id. In the case herein, plaintiff alleges that Chatham County waived its sovereign immunity through the purchase of liability insurance.\nA county may waive its sovereign immunity by purchasing liability insurance pursuant to N.C. Gen. Stat. \u00a7 153A-435(a) (2001). Chatham County purchased insurance entitled the \u201cNorth Carolina Counties Liability and Property Insurance Pool Fund\u201d (\u201cFund\u201d). The Fund clearly defines county sheriffs and chief deputies as \u201cLaw Enforcement Employees.\u201d\n\u201cLaw Enforcement Employees\u201d means persons described as . . . those armed employees who deal directly with the public and exercise general powers of arrest. This category includes but is not limited to the following:\na. county sheriff and chief deputy exercising powers of arrest;\nb. an officer exercising powers of arrest; and\nc. all personnel with regular street or road duties, or both, detectives and investigators.\nPlaintiff\u2019s brief to this Court concedes that Gray and Keck \u201c[are] law enforcement employees.\u201d The provisions governing law enforcement employees specifically exclude any claims brought by a covered person (law enforcement employee) against another covered person. As plaintiff and defendants are covered persons, plaintiffs claims against defendants are within an exception to the Fund\u2019s coverage.\nDefendants argue that the exception to liability insurance requires this Court to find that defendants are immune from suit. In order to facilitate discussion of this question, we must first address the capacities in which the defendants are being sued. We note that plaintiff\u2019s suit is against Gray and Keck in their official capacities, and against Gray in his individual capacity.\nThe doctrine of sovereign immunity bars actions against public officials sued in their official capacities. Beck v. City of Durham, 154 N.C. App. 221, 229, 573 S.E.2d 183, 190 (2002). Sheriffs and deputy sheriffs are considered public officials for purposes of sovereign immunity. Summey v. Barker, 142 N.C. App. 688, 691, 544 S.E.2d 262, 265 (2001). Thus, sovereign immunity bars plaintiff\u2019s claims against defendants in their official capacities.\nSovereign immunity does not shield public officials from personal liability for any actions which \u201c \u2018may have been corrupt, malicious or perpetrated outside and beyond the scope of official duties.\u2019 \u201d Beck, 154 N.C. App. at 230, 573 S.E.2d at 190 (quoting Locus v. Fayetteville State University, 102 N.C. App. 522, 526, 402 S.E.2d 862, 865 (1991)). Thus, sovereign immunity does not bar plaintiff\u2019s claim against Sheriff Gray in his individual capacity.\nThis Court must now determine whether plaintiff has sufficiently evidenced his wrongful discharge claim against Sheriff Gray individually. We must only find one theory to support plaintiff\u2019s claim in order to defeat the entry of summary judgment, and in doing so, we need not rule on the remaining theories.\nTo survive summary judgment, plaintiff must forecast sufficient evidence that a jury may find that Sheriff Gray discharged plaintiff in violation of public policy. See Caudill v. Dellinger, 129 N.C. App. 649, 656, 501 S.E.2d 99, 104 (1998). This Court has previously concluded that \u201c[i]t is the public policy of this state that citizens cooperate with law enforcement officials in the investigation of crimes.\u201d Caudill, 129 N.C. App. at 657, 501 S.E.2d at 104. In the case sub judice, Sheriff Gray was implicated in the mismanagement of the marijuana, an incident under investigation by the FBI and U.S. Customs. Plaintiff cooperated with the investigating agents by providing a confidential informant. Plaintiff\u2019s cooperation with said agents was \u201cclearly [a] protected activity which further[s] the public policy of this state.\u201d Id. We conclude that plaintiff has provided evidence which could support a claim for common law wrongful discharge in violation of public policy.\nPlaintiff\u2019s third assignment of error argues that the trial court erred when it granted defendants\u2019 summary judgment motion on plaintiff\u2019s free speech claim. To establish a cause of action for wrongful discharge in violation of free speech, plaintiff must forecast sufficient evidence \u201cthat the speech complained of qualified as protected speech or activity\u201d and \u201cthat such protected speech or activity was the motivating or but for cause for his discharge or demotion.\u201d Swain v. Elfland, 145 N.C. App. 383, 386, 550 S.E.2d 530, 533 (2001) (citations omitted).\nIn Corum v. University of North Carolina, our Supreme Court held that one whose state constitutional rights have been abridged has a direct claim under the appropriate constitutional provision. 330 N.C. 761, 782, 413 S.E.2d 276, 289 (1992). A claim is available, however, only in the absence of an adequate state remedy. Id. As plaintiffs rights are adequately protected by a wrongful discharge claim, a direct constitutional claim is not warranted. See Corum, 330 N.C. at 783, 413 S.E.2d at 289. The trial court did not err when granting defendants\u2019 motion to dismiss based on plaintiffs free speech claim.\nWe affirm the trial court\u2019s order granting summary judgment in favor of defendants for plaintiff\u2019s claims against defendants in their official capacities and for plaintiff\u2019s free speech claim. We reverse the trial court\u2019s order granting summary judgment on plaintiff\u2019s wrongful discharge claim against Sheriff Gray individually.\nAffirmed in part, reversed in part.\nJudges HUDSON and ELMORE concur.", "type": "majority", "author": "TIMMONS-GOODSON, Judge." } ], "attorneys": [ "McSurley & Osment, by Ashley Osment and Alan McSurely for plaintiff appellant.", "Womble Carlyle Sandridge & Rice, by Mark A. Davis for defendant appellee." ], "corrections": "", "head_matter": "DAN PHILLIPS, Plaintiff v. IKE GRAY, individually and in his official capacity as Sheriff of Chatham County, RANDY KECK, in his official capacity as Chief Deputy Sheriff of Chatham County, Defendants\nNo. COA02-1670\n(Filed 17 February 2004)\n1. Immunity\u2014 sheriff and deputy \u2014 official capacities \u2014 wrongful discharge\nSummary judgment was correctly granted for a sheriff and chief deputy in their official capacities on a wrongful discharge suit. Sovereign immunity bars actions against public officials in their official capacities, sheriffs and deputies are considered public officials, and the county\u2019s insurance fund included an exception for law enforcement employees bringing claims against each other.\n2. Immunity\u2014 sovereign \u2014 sheriff\u2014individual capacity \u2014 wrongful discharge\nSovereign immunity did not bar a claim for wrongful discharge in violation of public policy against a sheriff in his individual capacity. Sovereign immunity does not shield individuals from personal liability for actions which may have been corrupt, malicious, or outside the scope of official duties, and plaintiff provided evidence which could support his claim in that he provided an informant for an FBI investigation of mismanagement of marijuana by the sheriffs department.\nAppeal by plaintiff from order entered 1 August 2002 by Judge John R. Jolly, Jr., in Chatham County Superior Court. Heard in the Court of Appeals 10 September 2003.\nMcSurley & Osment, by Ashley Osment and Alan McSurely for plaintiff appellant.\nWomble Carlyle Sandridge & Rice, by Mark A. Davis for defendant appellee." }, "file_name": "0052-01", "first_page_order": 82, "last_page_order": 88 }