{ "id": 8468263, "name": "REGINALD NEWBERNE, Plaintiff-Appellant v. CRIME CONTROL AND PUBLIC SAFETY, an AGENCY of the State of North Carolina, DIVISION OF STATE HIGHWAY PATROL, a principal subunit of an agency of the State of North Carolina, BRYAN E. BEATTY, in his official capacity as Secretary of the Department of Crime Control and Public Safety, RICHARD W. HOLDEN, in his official capacity, as Commanding Officer of the Division of State Highway Patrol and C.E. MOODY, in his official capacity as Director of Internal Affairs for Division of State Highway Patrol, and A.C. COMBS, in his individual and official capacity as First Sergeant with the Division of State Highway Patrol, Defendants-Appellees", "name_abbreviation": "Newberne v. Crime Control & Public Safety", "decision_date": "2005-01-18", "docket_number": "No. COA03-530", "first_page": "87", "last_page": "97", "citations": [ { "type": "official", "cite": "168 N.C. App. 87" } ], "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": "260 S.E.2d 611", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "615", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "298 N.C. 715", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573981 ], "year": 1979, "pin_cites": [ { "page": "722", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/298/0715-01" ] }, { "cite": "421 S.E.2d 812", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "815" } ], "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": "N.C. Gen. Stat. \u00a7 126-34.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(a)(7)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 126-86", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "554 S.E.2d 832", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "354 N.C. 228", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138401, 138313, 138378, 138487, 138394 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/354/0228-04", "/nc/354/0228-02", "/nc/354/0228-01", "/nc/354/0228-05", "/nc/354/0228-03" ] }, { "cite": "550 S.E.2d 530", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 2001, "pin_cites": [ { "page": "535" }, { "page": "533" }, { "page": "535" }, { "page": "535" } ], "opinion_index": 0 }, { "cite": "145 N.C. App. 383", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11437867 ], "weight": 5, "year": 2001, "pin_cites": [ { "page": "389" }, { "page": "385-86" }, { "page": "389" }, { "page": "390" } ], "opinion_index": 0, "case_paths": [ "/nc-app/145/0383-01" ] }, { "cite": "579 S.E.2d 392", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "357 N.C. 63", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491393, 491653, 491720, 491625, 491823, 491897, 491898, 491868 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/357/0063-07", "/nc/357/0063-08", "/nc/357/0063-01", "/nc/357/0063-06", "/nc/357/0063-02", "/nc/357/0063-05", "/nc/357/0063-03", "/nc/357/0063-04" ] }, { "cite": "573 S.E.2d 596", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "598", "parenthetical": "citations omitted" }, { "page": "59", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "155 N.C. App. 574", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9251158 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "576", "parenthetical": "citations omitted" }, { "page": "576" } ], "opinion_index": 0, "case_paths": [ "/nc-app/155/0574-01" ] }, { "cite": "410 S.E.2d 232", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "234" } ], "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" } ], "opinion_index": 0, "case_paths": [ "/nc-app/104/0522-01" ] }, { "cite": "567 S.E.2d 803", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "152 N.C. App. 307", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9249985 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc-app/152/0307-01" ] }, { "cite": "448 S.E.2d 280", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "282" } ], "opinion_index": 0 }, { "cite": "115 N.C. App. 581", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12136994 ], "year": 1994, "pin_cites": [ { "page": "584" } ], "opinion_index": 0, "case_paths": [ "/nc-app/115/0581-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 126-85", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2003, "pin_cites": [ { "page": "(a)", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 126-84", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "pin_cites": [ { "page": "et seq." }, { "page": "(a)(l)" } ], "opinion_index": 0 }, { "cite": "337 S.E.2d 682", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 1 }, { "cite": "78 N.C. App. 589", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522873 ], "year": 1985, "opinion_index": 1, "case_paths": [ "/nc-app/78/0589-01" ] }, { "cite": "402 S.E.2d 862", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1991, "pin_cites": [ { "page": "866", "parenthetical": "citing Hawkins v. Webster, 78 N.C. App. 589, 337 S.E.2d 682 (1985)" }, { "page": "865", "parenthetical": "converting motion to dismiss into motion for summary judgment \"where matters outside the pleadings are presented to and not excluded by the court....\"" }, { "page": "866" } ], "opinion_index": 1 }, { "cite": "102 N.C. App. 522", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524939 ], "weight": 3, "year": 1991, "pin_cites": [ { "page": "527", "parenthetical": "citing Hawkins v. Webster, 78 N.C. App. 589, 337 S.E.2d 682 (1985)" }, { "page": "527" }, { "page": "527" } ], "opinion_index": 1, "case_paths": [ "/nc-app/102/0522-01" ] }, { "cite": "714 F. Supp. 146", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 7382035 ], "year": 1987, "pin_cites": [ { "page": "151" } ], "opinion_index": 1, "case_paths": [ "/f-supp/714/0146-01" ] }, { "cite": "333 S.E.2d 222", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 1 }, { "cite": "314 N.C. 276", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4691903 ], "year": 1985, "opinion_index": 1, "case_paths": [ "/nc/314/0276-01" ] }, { "cite": "347 S.E.2d 743", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "745", "parenthetical": "citing Oates v. JAG, Inc., 314 N.C. 276, 333 S.E.2d 222 (1985)" } ], "opinion_index": 1 }, { "cite": "318 N.C. 172", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4732963 ], "year": 1986, "pin_cites": [ { "page": "175", "parenthetical": "citing Oates v. JAG, Inc., 314 N.C. 276, 333 S.E.2d 222 (1985)" } ], "opinion_index": 1, "case_paths": [ "/nc/318/0172-01" ] }, { "cite": "354 S.E.2d 757", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "758" } ], "opinion_index": 1 }, { "cite": "85 N.C. App. 338", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12169904 ], "year": 1987, "pin_cites": [ { "page": "340" } ], "opinion_index": 1, "case_paths": [ "/nc-app/85/0338-01" ] }, { "cite": "489 S.E.2d 880", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "888", "parenthetical": "quoting Dixon v. Stuart, 85 N.C. App. 338, 340, 354 S.E.2d 757, 758 (1987)" } ], "opinion_index": 1 }, { "cite": "347 N.C. 97", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551301 ], "year": 1997, "pin_cites": [ { "page": "111-12", "parenthetical": "quoting Dixon v. Stuart, 85 N.C. App. 338, 340, 354 S.E.2d 757, 758 (1987)" } ], "opinion_index": 1, "case_paths": [ "/nc/347/0097-01" ] }, { "cite": "557 S.E.2d 528", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 1 }, { "cite": "254 N.C. 568", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627236 ], "year": 2001, "opinion_index": 1, "case_paths": [ "/nc/254/0568-01" ] }, { "cite": "403 S.E.2d 469", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "471" } ], "opinion_index": 1 }, { "cite": "328 N.C. 689", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2541726 ], "year": 1991, "pin_cites": [ { "page": "692" } ], "opinion_index": 1, "case_paths": [ "/nc/328/0689-01" ] }, { "cite": "551 S.E.2d 179", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "181" } ], "opinion_index": 1 }, { "cite": "145 N.C. App. 314", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11437314 ], "pin_cites": [ { "page": "316-17" } ], "opinion_index": 1, "case_paths": [ "/nc-app/145/0314-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 126-86", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 1 }, { "cite": "554 S.E.2d 832", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 1 }, { "cite": "354 N.C. 228", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138401, 138313, 138378, 138487, 138394 ], "year": 2001, "opinion_index": 1, "case_paths": [ "/nc/354/0228-04", "/nc/354/0228-02", "/nc/354/0228-01", "/nc/354/0228-05", "/nc/354/0228-03" ] }, { "cite": "550 S.E.2d 530", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "535" } ], "opinion_index": 1 }, { "cite": "145 N.C. App. 383", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11437867 ], "year": 2001, "opinion_index": 1, "case_paths": [ "/nc-app/145/0383-01" ] }, { "cite": "567 S.E.2d 803", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "809", "parenthetical": "quoting Kennedy v. Guilford Tech. Community College, 115 N.C. App. 581, 584, 448 S.E.2d 280, 282 (1994) (quoting McCauley v. Greensboro City Bd. of Educ., 714 F. Supp. 146, 151 (M.D.N.C. 1987))" }, { "page": "809", "parenthetical": "quotations omitted" } ], "opinion_index": 1 }, { "cite": "152 N.C. App. 307", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9249985 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "314", "parenthetical": "quoting Kennedy v. Guilford Tech. Community College, 115 N.C. App. 581, 584, 448 S.E.2d 280, 282 (1994) (quoting McCauley v. Greensboro City Bd. of Educ., 714 F. Supp. 146, 151 (M.D.N.C. 1987))" }, { "page": "314" } ], "opinion_index": 1, "case_paths": [ "/nc-app/152/0307-01" ] }, { "cite": "448 S.E.2d 280", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "282", "parenthetical": "quoting McCauley v. Greensboro City Bd. of Educ., 714 F. Supp. 146, 151 (M.D.N.C. 1987)" } ], "opinion_index": 1 }, { "cite": "115 N.C. App. 581", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12136994 ], "year": 1994, "pin_cites": [ { "page": "584", "parenthetical": "quoting McCauley v. Greensboro City Bd. of Educ., 714 F. Supp. 146, 151 (M.D.N.C. 1987)" } ], "opinion_index": 1, "case_paths": [ "/nc-app/115/0581-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 126-85", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2003, "opinion_index": 1 }, { "cite": "N.C. Gen. Stat. \u00a7 126-84", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 5, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 1 } ], "analysis": { "cardinality": 960, "char_count": 25592, "ocr_confidence": 0.75, "pagerank": { "raw": 1.1683905973654758e-07, "percentile": 0.5857241097840067 }, "sha256": "8246f6ee7b4233f2ca88992118ac988098a6aab8c2a409affb4ef41f1e76f01b", "simhash": "1:2b38f4e315ff2ede", "word_count": 4010 }, "last_updated": "2023-07-14T17:36:09.557360+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge WYNN concurs.", "Judge TYSON dissents with a separate opinion." ], "parties": [ "REGINALD NEWBERNE, Plaintiff-Appellant v. CRIME CONTROL AND PUBLIC SAFETY, an AGENCY of the State of North Carolina, DIVISION OF STATE HIGHWAY PATROL, a principal subunit of an agency of the State of North Carolina, BRYAN E. BEATTY, in his official capacity as Secretary of the Department of Crime Control and Public Safety, RICHARD W. HOLDEN, in his official capacity, as Commanding Officer of the Division of State Highway Patrol and C.E. MOODY, in his official capacity as Director of Internal Affairs for Division of State Highway Patrol, and A.C. COMBS, in his individual and official capacity as First Sergeant with the Division of State Highway Patrol, Defendants-Appellees" ], "opinions": [ { "text": "McGEE, Judge.\nPlaintiff appeals from the trial court\u2019s dismissal on 29 January 2003 of plaintiffs complaint of retaliation made pursuant to North Carolina\u2019s Whistleblower Act, N.C. Gen. Stat. \u00a7 126-84, et. seq.\nReginald Newberne (plaintiff) was a law enforcement officer with the State Highway Patrol (SHP) in the position of trooper. While on duty on 14 May 2000, plaintiff arrived at approximately 12:30 a.m. at a crime scene where Owen Jackson Nichols (Nichols) had been apprehended and arrested. At the time of plaintiff\u2019s arrival on the scene, Nichols had already been arrested and placed in the rear seat of the patrol car of Trooper B.O. Johnson (Trooper Johnson). Plaintiff did not participate in, nor witness, the apprehension of Nichols, and was never close enough to Nichols to assess Nichols\u2019 physical condition.\nTrooper P.A. Collins (Trooper Collins) approached plaintiff at the scene of the arrest. Plaintiff observed that Trooper Collins was rubbing one of his hands and plaintiff asked Trooper Collins whether he had hurt it. Trooper Collins responded that he had jammed his hand after hitting Nichols and that Trooper J.R. Edwards (Trooper Edwards) had attempted to pull \u201c[Trooper Collins\u2019 hand] back in place.\u201d Plaintiff suggested that Trooper Collins go to the hospital for treatment, but Trooper Collins responded that he would not know how to explain his injury to the sergeant. Trooper Collins speculated that he could tell the sergeant that he hurt himself in a fall. Plaintiff then left the scene of the arrest.\nNichols\u2019 father filed a complaint on 14 May 2000 with the Internal Affairs section of the Division of State Highway Patrol, alleging that Troopers Johnson, Collins, and Edwards had used excessive force in arresting his son.\nPlaintiff\u2019s supervisor, Sergeant A.C. Combs (Sergeant- Combs), asked plaintiff on 13 June 2000 whether he had been involved in the apprehension of Nichols. Plaintiff responded that Nichols was arrested prior to plaintiffs arrival on the scene. Sergeant Combs then asked plaintiff whether he saw anyone use force on Nichols. Plaintiff responded that he had not, but that Trooper Collins had hurt his hand while at the scene of the arrest. Sergeant Combs directed plaintiff to write a report stating what he recalled seeing at the scene of Nichol\u2019s arrest, and for plaintiff to leave the report in Sergeant Comb\u2019s basket by the end of plaintiff\u2019s shift that day.\nConcerned about retaliation and reprisal as a result of his report, plaintiff called Sergeant Combs on the morning of 14 June 2000 and expressed his reluctance to write the statement. Plaintiff suggested that he was \u201cnot involved\u201d in the arrest of Nichols. Sergeant Combs again directed plaintiff to write the report regarding what he had seen on 14 May 2000.\nPlaintiff submitted a statement (Statement I) later in the day on 14 June 2000. Plaintiff had limited Statement I to what plaintiff had literally seen transpire on 14 May 2000. Plaintiff noted in Statement I that Trooper Collins had apparently hurt his hand and that plaintiff suggested he receive medical attention. When plaintiff submitted Statement I to Sergeant Combs, Sergeant Combs immediately handed plaintiff a previously prepared Trooper Performance Record which cited plaintiff\u2019s failure to follow the sergeant\u2019s request to complete the report by the initial deadline and for being \u201cargumentative\u201d about the directive to write a report.\nPlaintiff was concerned that he had not included in Statement I Trooper Collins\u2019 admission that he had hurt his hand in the apprehension of Nichols. Plaintiff thereafter sought the advice of a fellow trooper and mentor, Sergeant Montgomery. After speaking with Sergeant Montgomery, plaintiff approached Sergeant Combs on 20 June 2000 and informed him that Statement I had not included all that plaintiff had witnessed on 14 May 2000. Sergeant Combs directed plaintiff to write an amended statement including all that plaintiff knew about the events of 14 May 2000.\nPlaintiff complied with Sergeant Combs\u2019 order and wrote a second statement (Statement II) in which he noted that Trooper Collins had told him that he had hurt his hand hitting Nichols and that Trooper Collins had suggested he could tell the sergeant that he had hurt his hand in a fall. Plaintiff noted in Statement II that he had failed to include this information in Statement I because he did not consider himself to be involved in the incident and did not want to get involved.\nPlaintiff believed Sergeant Combs reported to Captain Moody that plaintiff was \u201cmisleading, untruthful and incomplete in his oral and written communications\u201d with Sergeant Combs on 13 June 2000 regarding the 14 May 2000 incident. Captain Moody thereafter filed a personnel complaint on or about 15 September 2000 alleging that plaintiff had committed a Serious Personal Conduct Violation of Directive No. H.l. Section VI (Truthfulness Directive) of the Division of State Highway Patrol\u2019s policy manual. Plaintiffs employment was terminated on 10 April 2001 as a result of his failure to comply with the Truthfulness Directive.\nPlaintiff filed a complaint in Wake County Superior Court on 9 April 2002 alleging defendants had violated North Carolina\u2019s Whistleblower Act in terminating plaintiff\u2019s employment. Defendants filed a motion to dismiss plaintiff\u2019s complaint on the grounds that he had failed to state a claim upon which relief could be granted. Defendants\u2019 motion was granted in an order filed 29 January 2003. Plaintiff appeals.\nIn plaintiff\u2019s first assignment of error, he argues the trial court erred in granting defendants\u2019 Rule 12(b)(6) motion to dismiss plaintiff\u2019s complaint. Plaintiff contends that his complaint properly alleged a prima facie claim pursuant to the Whistleblower Act and that plaintiff made no disclosure in his complaint that would defeat that claim. North Carolina\u2019s Whistleblower Act, N.C. Gen. Stat. \u00a7 126-84 et seq. (2003), provides that\nNo head of any State department, agency or institution or other State employee exercising supervisory authority shall discharge, threaten or otherwise discriminate against a State employee regarding the State employee\u2019s compensation, terms, conditions, location, or privileges of employment because the State employee, or a person acting on behalf of the employee, reports or is about to report, verbally or in writing, any activity described in G.S. 126-84, unless the State employee knows or has reason to believe that the report is inaccurate.\nN.C. Gen. Stat. \u00a7 126-85(a) (2003) (emphasis added). In order to present a claim under the Whistleblower Act, plaintiff must establish a prima facie case consisting of the following elements: \u201c(1) [plaintiff] engaged in protected activity, (2) followed by an adverse employment action, and (3) the protected conduct was a substantial or motivating factor in the adverse action.\u201d Kennedy v. Guilford Tech. Community College, 115 N.C. App. 581, 584, 448 S.E.2d 280, 282 (1994); see also Wells v. N.C. Dep\u2019t of Corr., 152 N.C. App. 307, 567 S.E.2d 803 (2002). The explicit policy supporting the Whistleblower Act is to encourage State employees to report\nverbally or in writing to their supervisor, department head, or other appropriate authority, evidence of activity by a State agency or State employee constituting:\n(1) A violation of State or federal law, rule or regulation^]\nN.C. Gen. Stat. \u00a7 126-84(a)(l).\nIn considering a Rule 12(b)(6) motion, a trial court must determine whether, as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief may be granted under some legal theory. See N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(6) (2003). A motion to dismiss directs the trial court to test the legal sufficiency of the complaint, not the facts which support the claim. Warren v. New Hanover County Bd. of Education, 104 N.C. App. 522, 525, 410 S.E.2d 232, 234 (1991). Specifically, the trial court is to dismiss a complaint \u201c \u2018 \u201cif no law exists to support the claim made, if sufficient facts to make out a good claim are absent, or if facts are disclosed which will necessarily defeat the claim.\u201d \u2019 \u201d Plummer v. Community Gen. Hosp. of Thomasville, Inc., 155 N.C. App. 574, 576, 573 S.E.2d 596, 598 (2002) (citations omitted), disc. review denied, 357 N.C. 63, 579 S.E.2d 392 (2003).\nAs to the first element of a claim under the Whistleblower Act, plaintiff argues that in filing his statement, he was engaged in a \u201cprotected activity,\u201d pursuant to N.C.G.S. \u00a7 126-84(a)(l). Secondly, plaintiff alleges in his complaint that defendants terminated his employment following his submission of his statements about the incident. Plaintiff further contends that his protected conduct in reporting that \u201cthe Troopers violated State or federal law . . . and exercised gross abuse of authority in the apprehension and arrest of Owen Nichols\u201d was a substantial or motivating factor in his firing.\nDefendants argue, however, that plaintiffs complaint also alleges facts which necessarily defeat plaintiff\u2019s claim for relief. We agree. Plaintiff admitted in the allegations of his complaint that he knew the original report prepared and submitted by him was inaccurate. Plaintiff\u2019s complaint stated that he knowingly filed an incomplete report and later filed a correction after conferring with Sergeant Montgomery. Plaintiffs admission in his complaint of his own inaccurate reporting disclosed facts which \u201c \u2018 \u201cwill necessarily defeat the claim.\u201d \u2019 \u201d Plummer, 155 N.C. App. at 576, 573 S.E.2d at 59 (citations omitted).\nThe stated purpose of the Whistleblower Act is to encourage state employees to report improper conduct. Plaintiff in this case was directed to write Statement I, which by his own admission, he wrote in an incomplete and misleading manner. Plaintiff alleged he was troubled by his account in Statement I and sought to amend the original report. Furthermore, plaintiff alleged he wrote both statements at the behest of Sergeant Combs. Plaintiff makes no allegation that Sergeant Combs directed plaintiff to write anything counter to the truth. The purpose of the Whistleblower Act is to protect truthful reporting, not to condone untruthful conduct such as plaintiff\u2019s. The fact that plaintiff wrote Statement II does not render the filing of Statement I meaningless in the context of the Whistleblower Act, which protects a state employee from retaliation, except when that employee knows the report is inaccurate. The trial court did not err in dismissing plaintiff\u2019s complaint and this assignment of error is without merit.\nIn addition, prior to filing the complaint in this case, plaintiff filed an action before the Office of Administrative Hearings alleging retaliation and racial discrimination. In Swain v. Elfland, 145 N.C. App. 383, 550 S.E.2d 530, cert. denied, 354 N.C. 228, 554 S.E.2d 832 (2001), our Court noted that there existed for a plaintiff two means of redress for violations of the Whistleblower statute: (1) N.C. Gen. Stat. \u00a7 126-86 which provides that \u201c \u2018[a]ny State employee injured by a violation of G.S. 126-85 may maintain an action in superior court...\u2019 \u201d and (2) N.C. Gen. Stat. \u00a7 126-34.1(a)(7) which states that a State employee may file in the Office of Administrative Hearings a contested case for \u201c \u2018[a]ny retaliatory personnel action that violates G.S. 126-85.\u2019 \u201d Swain, 145 N.C. App. at 389, 550 S.E.2d at 535 (quoting N.C.G.S. \u00a7 126-34 and N.C.G.S. \u00a7 126-34.1(a)(7)). Our Court determined in Swain that \u201c[t]he only reasonable interpretation of these statutes is that a state employee may choose to pursue a Whistleblower claim in either forum, but not both.\u201d Id.; see also Huang v. N. C. State University, 107 N.C. App. 710, 715, 421 S.E.2d 812, 815 (1992).\nThe plaintiff in Swain, a police officer, filed a complaint in Superior Court pursuant to the Whistleblower Act, which included allegations of wrongful discharge and racial discrimination. Shortly thereafter, the plaintiff alleged in an administrative action that he had been suspended as a result of racial discrimination and retaliation. Swain, 145 N.C. App. at 385-86, 550 S.E.2d at 533. Our Court stated that if the plaintiff could maintain an administrative action and an action in Superior Court simultaneously, \u201cthis would allow [the] 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 estop-pel.\u201d Swain, 145 N.C. App. at 389, 550 S.E.2d at 535.\nPlaintiff admits in his complaint that he \u201cdid not exhaust his potential administrative remedies for his claim of retaliation[.]\u201d As our Supreme Court stated in Presnell v. Pell, interrupting administrative proceedings through \u201c \u2018premature intervention by the courts would completely destroy the efficiency, effectiveness, and purpose of the administrative agencies.\u2019 \u201d Presnell, 298 N.C. 715, 722, 260 S.E.2d 611, 615 (1979) (citations omitted) (the plaintiffs wrongful discharge claim was properly dismissed pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)). Plaintiff in the case before us failed to exhaust his administrative remedies and the trial court did not err in dismissing his claim filed in Superior Court. Swain, 145 N.C. App. at 390, 550 S.E.2d at 535.\nBecause we find the trial court did not err in dismissing plaintiffs complaint, we do not reach plaintiffs remaining assignment of error.\nAffirmed.\nJudge WYNN concurs.\nJudge TYSON dissents with a separate opinion.", "type": "majority", "author": "McGEE, Judge." }, { "text": "TYSON, Judge\ndissenting.\nI vote to reverse the trial court\u2019s Order dismissing plaintiff\u2019s action for failure to state a claim upon which relief can be granted. I respectfully dissent.\nI. Standard of Review\nIn reviewing the trial court\u2019s grant of a Rule 12(b)(6) motion to dismiss, we must determine whether \u201cas a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief can be granted under some legal theory.\u201d Considine v. Compass Grp. USA, Inc., 145 N.C. App. 314, 316-17, 551 S.E.2d 179, 181 (citing Lynn v. Overlook Development, 328 N.C. 689, 692, 403 S.E.2d 469, 471 (1991)), aff'd, 254 N.C. 568, 557 S.E.2d 528 (2001); see also N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(6) (2003). The trial court\u2019s dismissal is affirmed only if \u201c \u2018it appears beyond doubt that the plaintiff could prove no set of facts in support of his claim which would entitle him to relief.\u2019 \u201d Meyer v. Walls, 347 N.C. 97, 111-12, 489 S.E.2d 880, 888 (1997) (quoting Dixon v. Stuart, 85 N.C. App. 338, 340, 354 S.E.2d 757, 758 (1987)).\nDismissal of a complaint under Rule 12(b)(6) is proper when one of the following three conditions is satisfied: (1) when the complaint on its face reveals that no law supports plaintiff\u2019s claim; (2) when the complaint on its face reveals the absence of fact sufficient to make a good claim; (3) when some fact disclosed in the complaint necessarily defeats plaintiff\u2019s claim.\nJackson v. Bumgardner, 318 N.C. 172, 175, 347 S.E.2d 743, 745 (1986) (citing Oates v. JAG, Inc., 314 N.C. 276, 333 S.E.2d 222 (1985)).\nII. Sufficiency of Complaint\nPlaintiff\u2019s action is governed by N.C. Gen. Stat. \u00a7 126-84, et seq., the Whistleblower Act. The Whistleblower Act protects State employees who report, among other things, illegal activity by a State agency or employee. N.C. Gen. Stat. \u00a7 126-84, et seq. (2003). Department heads and supervising authorities are prohibited from retaliating against employees who engage in protected activity. N.C. Gen. Stat. \u00a7 126-84; N.C. Gen. Stat. \u00a7 126-85 (2003). The necessary elements for a claim under the Whistleblower Act include: \u201c(1) the plaintiff\u2019s engagement in a \u2018protected activity,\u2019 (2) an \u2018adverse employment action\u2019 occurring subsequent to the \u2018protected activity,\u2019 and (3) the plaintiff\u2019s engagement in the \u2018protected activity\u2019 was a \u2018substantial or motivating factor\u2019 in the \u2018adverse employment action.\u2019 \u201d Wells v. N.C. Dep\u2019t. of Corr., 152 N.C. App. 307, 314, 567 S.E.2d 803, 809 (2002) (quoting Kennedy v. Guilford Tech. Community College, 115 N.C. App. 581, 584, 448 S.E.2d 280, 282 (1994) (quoting McCauley v. Greensboro City Bd. of Educ., 714 F. Supp. 146, 151 (M.D.N.C. 1987))).\nHere, plaintiff\u2019s complaint properly alleges each required element and that he engaged in \u201cprotected activity,\u201d pursuant to N.C. Gen. Stat. \u00a7 126-84(a). Specifically, plaintiff\u2019s complaint alleges: (1) he was a State employee and a Trooper with the North Carolina Division of State Highway Patrol; (2) all defendants were State employees who exercised supervisory authority over plaintiff pursuant to N.C. Gen. Stat. \u00a7 126-85; (3) plaintiffs initial statement, Statement I, was \u201ctruthful and complied with the instruction of [Sergeant] Combs;\u201d (4) plaintiff, after seeking \u201cthe counsel and mentorship of another trooper,\u201d approached Sergeant Combs \u201con his own volition\u201d to inform him that there were \u201cthings he didn\u2019t know about what had happened,\u201d which resulted in plaintiffs subsequent preparation and submission of an amended statement.\nRegarding the second element, plaintiffs complaint alleges that defendants terminated plaintiff following submission of his amended statement regarding the incident. In filing his first report, plaintiff literally complied with his supervisor\u2019s request to \u201cwrite what he saw in a statement\u201d by filing his statement the next morning. Although plaintiff reluctantly filed Statement I one day after Sergeant Combs demanded the statement, the short delay does not indicate \u201cmisleading, untruthful [or] incomplete . . . written communications,\u201d which were the reasons cited for plaintiff\u2019s termination. The majority\u2019s opinion does not identify any \u201cmisleading\u201d or \u201cuntruthful\u201d communication contained in plaintiff\u2019s Statement I. State employees, and state patrolmen in particular, regularly and routinely file amendments or continuations to their initial reports.\nThe third element is supported by allegations that \u201cDefendants discharged Plaintiff because Plaintiff reported to his superiors, both verbally and in writing, information in the Amended Statement that supports a contention that the Troopers violated State or federal law . . . and exercised gross abuse of authority in the apprehension and arrest of Owen Nichols.\u201d\nPlaintiff\u2019s claim under the Whistleblower Act is further supported by allegations that: (1) \u201c[his] sanction of dismissal for allegedly withholding information . . . was grossly inequitable in comparison with the treatment and/or sanctions received by other Troopers;\u201d (2) \u201cDefendants\u2019 termination of plaintiff was pretextual in the need to protect the Department and Division from a potential civil law suit by Owen Nichols for the use of excessive force;\u201d (3) \u201cWhen Plaintiff submitted the Statement [I], Sergeant Combs handed Plaintiff a previously prepared Trooper Performance Record,\u201d a disciplinary action; and (4) \u201cDefendants essentially punished Plaintiff for reporting on Plaintiff\u2019s own volition the truth, which truth was protected by N.C. Gen. Stat. \u00a7 126-84.\u201d\nThese allegations, construed liberally and taken as true, are sufficient to support plaintiff\u2019s claim that he engaged in \u201cprotected activity,\u201d which became a \u201csubstantial or motivating factor in the adverse employment action.\u201d Wells, 152 N.C. App. at 314, 567 S.E.2d at 809 (quotations omitted).\nIII. Disclosure of Facts to Defeat Plaintiff\u2019s Claim\nPlaintiff argues his complaint does not reveal any fact to defeat his claim. I agree. \u201cWhen considering a 12(b)(6) motion to dismiss, the trial court need only look to the face of the complaint to determine whether it reveals an insurmountable bar to plaintiff\u2019s recovery.\u201d Locus v. Fayetteville State University, 102 N.C. App. 522, 527, 402 S.E.2d 862, 866 (1991) (citing Hawkins v. Webster, 78 N.C. App. 589, 337 S.E.2d 682 (1985)).\nA. Truthfulness of the Report\nThe majority\u2019s opinion concludes, \u201cPlaintiff\u2019s complaint stated that he knowingly filed an incomplete report and later filed a correction after conferring with Sergeant Montgomery.\u201d Plaintiff\u2019s complaint does not allege or reveal that \u201che knew the original report prepared and submitted by him was inaccurate,\u201d as the majority\u2019s opinion contends.\nTaking plaintiff\u2019s allegations as true, he was \u201ctruthful and complied with the instruction of [Sergeant] Combs . . . [and] strictly followed [Sergeant] Combs\u2019[s] instructions to write what he \u2018saw\u2019 . . . .\u201d (Emphasis supplied). Plaintiff \u201cremained troubled about whether he should had [sic] also included Collins\u2019 Statements [regarding how he had injured his hand] in the Statement [I] . . ..\u201d On his .own accord, plaintiff later informed Sergeant Combs of Collins\u2019s statements and amended his statement to include, at Sergeant Combs\u2019s request, \u201ceverything he knows about the Incident.\u201d Both statements completed by plaintiff properly conformed to the direction and request of his commanding- officer and were wholly true and accurate. Treating plaintiff\u2019s allegations as true, Statement I included everything plaintiff \u201csaw,\u201d and the amended statement included everything he \u201cknew.\u201d\nNo allegation contained on the face of plaintiff\u2019s complaint defeats his claim for relief. The majority\u2019s opinion fails to identify specifically any allegation to defeat plaintiff\u2019s complaint and errs in its holding to affirm the trial court\u2019s Rule 12(b)(6) dismissal of plaintiff\u2019s complaint on this basis.\nB. Office of Administrative Hearings\nDefendants contend and the majority\u2019s opinion concludes plaintiffs claim with the Office of Administrative Hearings (\u201cOAH\u201d) bars the action at bar. I disagree.\nPlaintiffs complaint admits he \u201cdid not exhaust all his potential administrative remedies,\u201d but mentions no pending claim with the OAH. Defendants\u2019 argument and assertion of other defenses may be appropriate for a summary judgment hearing under Rule 56, but are not to be considered in a motion to dismiss under Rule 12(b)(6). See Locus, 102 N.C. App. at 527, 402 S.E.2d at 865 (converting motion to dismiss into motion for summary judgment \u201cwhere matters outside the pleadings are presented to and not excluded by the court....\u201d).\nReliance by the majority\u2019s opinion on Swain v. Elfland, 145 N.C. App. 383, 550 S.E.2d 530, cert. denied, 354 N.C. 228, 554 S.E.2d 832 (2001), is misplaced. Although this Court held that a plaintiff, under the Whistleblower Act, has two means of redress, we stopped short of concluding that a plaintiff must first exhaust all his administrative remedies before seeking relief in the superior court. Id. at 390, 550 S.E.2d at 535. As plaintiff\u2019s complaint includes no allegation regarding a hearing conducted in the OAH, Swain does not apply. The majority\u2019s opinion acknowledges plaintiff\u2019s right to bring an action in the superior court is allowed pursuant to N.C. Gen. Stat. \u00a7 126-86 (2003).\nIV. Conclusion\nNeither the majority\u2019s opinion nor defendants identify any fact or set of facts contained on the face of plaintiff\u2019s complaint to defeat plaintiff\u2019s Whistleblower claim. Upon review of \u201cthe face of the complaint,\u201d plaintiff presents no fact to reveal an \u201cinsurmountable bar\u201d to recovery. See Locus, 102 N.C. App. at 527, 402 S.E.2d at 866.\nI vote to reverse the trial court\u2019s judgment granting defendants\u2019 Rule 12(b)(6) motion to dismiss. Upon defendants\u2019 motion to dismiss for failure to state a claim upon which relief can be granted, the trial court must liberally treat plaintiff\u2019s allegations as true. Plaintiff\u2019s complaint sufficiently alleges a claim under the Whistleblower Act. I respectfully dissent.", "type": "dissent", "author": "TYSON, Judge" } ], "attorneys": [ "Allen and Pinnix, P.A., by J. Heydt Philbeck, for plaintiff - appellant.", "Attorney General Roy Cooper, by Special Deputy Attorney General Isaac T. Avery, III, and Assistant Attorney General Donald K. Phillips, for the State." ], "corrections": "", "head_matter": "REGINALD NEWBERNE, Plaintiff-Appellant v. CRIME CONTROL AND PUBLIC SAFETY, an AGENCY of the State of North Carolina, DIVISION OF STATE HIGHWAY PATROL, a principal subunit of an agency of the State of North Carolina, BRYAN E. BEATTY, in his official capacity as Secretary of the Department of Crime Control and Public Safety, RICHARD W. HOLDEN, in his official capacity, as Commanding Officer of the Division of State Highway Patrol and C.E. MOODY, in his official capacity as Director of Internal Affairs for Division of State Highway Patrol, and A.C. COMBS, in his individual and official capacity as First Sergeant with the Division of State Highway Patrol, Defendants-Appellees\nNo. COA03-530\n(Filed 18 January 2005)\n1. Public Officers and Employees\u2014 whistleblower complaint \u2014 highway patrol trooper \u2014 incomplete report\nThe trial court did not err by dismissing a whistleblower complaint for failure to state a claim where plaintiff was a highway patrol trooper who had filed a report in which he held back information about excessive force by another officer, eventually filed a complete report, and was dismissed for violating State Highway Patrol truthfulness requirements. The purpose of the Whistle-blower Act is to protect truthful reporting, not to condone untruthful conduct.\n2. Public Officers and Employees\u2014 whistleblower complaint \u2014 failure to exhaust administrative remedies\nA whistleblower complaint by a highway patrol trooper was properly dismissed under N.C.G.S. \u00a7 1A-1, Rule 12(b)(6) where plaintiff admitted in his complaint that he had not exhausted his administrative remedies.\nJudge Tyson dissenting.\nAppeal by plaintiff from an order entered 29 January 2003 by Judge Henry W. Hight, Jr. in Superior Court, Wake County. Heard in the Court of Appeals 24 February 2004.\nAllen and Pinnix, P.A., by J. Heydt Philbeck, for plaintiff - appellant.\nAttorney General Roy Cooper, by Special Deputy Attorney General Isaac T. Avery, III, and Assistant Attorney General Donald K. Phillips, for the State." }, "file_name": "0087-01", "first_page_order": 117, "last_page_order": 127 }