{ "id": 4343157, "name": "REBECCA S. WHITE, Plaintiff v. CURTIS COCHRAN, Defendant", "name_abbreviation": "White v. Cochran", "decision_date": "2011-10-04", "docket_number": "No. COA10-1191", "first_page": "125", "last_page": "134", "citations": [ { "type": "official", "cite": "216 N.C. App. 125" } ], "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": "592 S.E.2d 229", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12631110 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/se2d/592/0229-01" ] }, { "cite": "163 N.C. App. 52", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8915000, 12631110 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/nc-app/163/0052-01", "/se2d/592/0229-01" ] }, { "cite": "618 S.E.2d 750", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633880 ], "year": 2005, "pin_cites": [ { "page": "753" } ], "opinion_index": 0, "case_paths": [ "/se2d/618/0750-01" ] }, { "cite": "621 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634294 ], "year": 2005, "pin_cites": [ { "page": "5", "parenthetical": "\"The official capacity claims [against the Sheriff and his employees] in this case are, therefore, actually claims against the office of the Sheriff of Robeson County.\"" } ], "opinion_index": 0, "case_paths": [ "/se2d/621/0001-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 58-76-5", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2009, "opinion_index": 0 }, { "cite": "588 S.E.2d 467", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "357 N.C. 650", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491518 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/357/0650-01" ] }, { "cite": "582 S.E.2d 325", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "331" } ], "opinion_index": 0 }, { "cite": "158 N.C. App. 618", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9188744 ], "pin_cites": [ { "page": "627" } ], "opinion_index": 0, "case_paths": [ "/nc-app/158/0618-01" ] }, { "cite": "342 F. Supp. 2d 413", "category": "reporters:federal", "reporter": "F. Supp. 2d", "case_ids": [ 1499398 ], "year": 2004, "pin_cites": [ { "page": "426", "parenthetical": "holding that plaintiff could assert official capacity claim against sheriff for wrongful discharge if sovereign immunity was waived, although ultimately concluding that allegations of complaint did not allege any violation of state public policy" } ], "opinion_index": 0, "case_paths": [ "/f-supp-2d/342/0413-01" ] }, { "cite": "580 S.E.2d 757", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "762", "parenthetical": "\"[A] plaintiff may state a claim for wrongful discharge in violation of public policy where he or she alleges the dismissal resulted from an assertion of rights under the Workers' Compensation Act.\"" } ], "opinion_index": 0 }, { "cite": "158 N.C. App. 252", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9186961 ], "year": 2003, "pin_cites": [ { "page": "260", "parenthetical": "\"[A] plaintiff may state a claim for wrongful discharge in violation of public policy where he or she alleges the dismissal resulted from an assertion of rights under the Workers' Compensation Act.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/158/0252-01" ] }, { "cite": "593 S.E.2d 808", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "812", "parenthetical": "\"In this case, plaintiff has alleged sufficient facts to survive a motion to dismiss on the claim of wrongful discharge in violation of public policy. Plaintiff claims that she was fired because she asserted her rights under the Workers' Compensation Act.\"" } ], "opinion_index": 0 }, { "cite": "163 N.C. App. 504", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8918898 ], "year": 2004, "pin_cites": [ { "page": "509", "parenthetical": "\"In this case, plaintiff has alleged sufficient facts to survive a motion to dismiss on the claim of wrongful discharge in violation of public policy. Plaintiff claims that she was fired because she asserted her rights under the Workers' Compensation Act.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/163/0504-01" ] }, { "cite": "173 N.C. App. 218", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8353244 ], "year": 2005, "pin_cites": [ { "page": "222" } ], "opinion_index": 0, "case_paths": [ "/nc-app/173/0218-01" ] }, { "cite": "416 S.E.2d 166", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "169" } ], "opinion_index": 0 }, { "cite": "331 N.C. 348", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2498595 ], "year": 1992, "pin_cites": [ { "page": "353" } ], "opinion_index": 0, "case_paths": [ "/nc/331/0348-01" ] }, { "cite": "328 S.E.2d 818", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "826" } ], "opinion_index": 0 }, { "cite": "74 N.C. App. 331", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524570 ], "year": 1985, "pin_cites": [ { "page": "342" } ], "opinion_index": 0, "case_paths": [ "/nc-app/74/0331-01" ] }, { "cite": "381 S.E.2d 445", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "447", "parenthetical": "quoting Sides v. Duke Univ., 74 N.C. App. 331, 342, 328 S.E.2d 818, 826 (1985)" } ], "opinion_index": 0 }, { "cite": "325 N.C. 172", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2488329 ], "year": 1989, "pin_cites": [ { "page": "175", "parenthetical": "quoting Sides v. Duke Univ., 74 N.C. App. 331, 342, 328 S.E.2d 818, 826 (1985)" } ], "opinion_index": 0, "case_paths": [ "/nc/325/0172-01" ] }, { "cite": "530 S.E.2d 87", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "89" } ], "opinion_index": 0 }, { "cite": "138 N.C. App. 516", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11080606 ], "year": 2000, "pin_cites": [ { "page": "520" } ], "opinion_index": 0, "case_paths": [ "/nc-app/138/0516-01" ] }, { "cite": "527 S.E.2d 87", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "90" } ], "opinion_index": 0 }, { "cite": "137 N.C. App. 168", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11092543 ], "year": 2000, "pin_cites": [ { "page": "172" } ], "opinion_index": 0, "case_paths": [ "/nc-app/137/0168-01" ] }, { "cite": "517 S.E.2d 171", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1999, "pin_cites": [ { "page": "177", "parenthetical": "holding that defendants were sued in individual capacities in part because complaint alleged defendants were citizens and residents of Charlotte, Mecklenburg County and only subsequently \"linked them to the Board [of Edu-cation] as agents\"" }, { "page": "177", "parenthetical": "in concluding that relief was sought in defendants' individual capacities, pointing out that plaintiff sought relief jointly and severally" } ], "opinion_index": 0 }, { "cite": "134 N.C. App. 248", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11143856 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "257", "parenthetical": "holding that defendants were sued in individual capacities in part because complaint alleged defendants were citizens and residents of Charlotte, Mecklenburg County and only subsequently \"linked them to the Board [of Edu-cation] as agents\"" }, { "page": "257" } ], "opinion_index": 0, "case_paths": [ "/nc-app/134/0248-01" ] }, { "cite": "489 S.E.2d 880", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "887" } ], "opinion_index": 0 }, { "cite": "347 N.C. 97", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551301 ], "year": 1997, "pin_cites": [ { "page": "110" } ], "opinion_index": 0, "case_paths": [ "/nc/347/0097-01" ] }, { "cite": "495 S.E.2d 721", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 10, "year": 1998, "pin_cites": [ { "page": "724" }, { "page": "724-25" }, { "page": "725" }, { "page": "723" }, { "page": "724" }, { "parenthetical": "concluding that defendant was sued in official capacity in part because initial allegation identified defendant as being employed by Board of Education even though same allegation identified defendant as citizen and resident of Mecklenburg County" }, { "page": "724", "parenthetical": "noting, in holding that plaintiff brought only official capacity claim, that plaintiff asserted only single claim for relief that Board was negligent based on negligent acts of individual defendant who was acting as Board's agent" } ], "opinion_index": 0 }, { "cite": "347 N.C. 548", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551074 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "553" } ], "opinion_index": 0, "case_paths": [ "/nc/347/0548-01" ] }, { "cite": "57 Fed. Appx. 141", "category": "reporters:federal", "reporter": "Fed. Appx.", "year": 2003, "opinion_index": 0 }, { "cite": "203 F. Supp. 2d 503", "category": "reporters:federal", "reporter": "F. Supp. 2d", "case_ids": [ 9426464 ], "year": 2002, "pin_cites": [ { "page": "508", "parenthetical": "holding that claims against sheriff and officer in their official capacities \"actually constitute a suit against the entity of which those officials are agents - in this case, the Office of Sheriff of Davie County\"" } ], "opinion_index": 0, "case_paths": [ "/f-supp-2d/203/0503-01" ] }, { "cite": "343 F. Supp. 2d 483", "category": "reporters:federal", "reporter": "F. Supp. 2d", "case_ids": [ 9146449 ], "year": 2004, "pin_cites": [ { "page": "493", "parenthetical": "\"A claim against [Sheriff and his employees] in their official capacities constitutes a claim against the entity for which they act as agents, here the ... County Sheriffs Department.\"" } ], "opinion_index": 0, "case_paths": [ "/f-supp-2d/343/0483-01" ] }, { "cite": "169 N.C. App. 460", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8471035 ], "year": 2005, "pin_cites": [ { "page": "466", "parenthetical": "\"The official capacity claims [against the Sheriff and his employees] in this case are, therefore, actually claims against the office of the Sheriff of Robeson County.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/169/0460-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 95-242", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2009, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "594 S.E.2d 809", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "811" } ], "opinion_index": 0 }, { "cite": "164 N.C. App. 183", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8896347 ], "year": 2004, "pin_cites": [ { "page": "186" } ], "opinion_index": 0, "case_paths": [ "/nc-app/164/0183-01" ] }, { "cite": "538 S.E.2d 569", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "353 N.C. 257", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135606 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/353/0257-01" ] }, { "cite": "528 S.E.2d 372", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "378" } ], "opinion_index": 0 }, { "cite": "137 N.C. App. 192", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11092695 ], "pin_cites": [ { "page": "201-02" } ], "opinion_index": 0, "case_paths": [ "/nc-app/137/0192-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 95-243", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "year": 2009, "pin_cites": [ { "page": "(c)" }, { "page": "(a) and (2)" }, { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 95-241", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 6, "year": 2009, "pin_cites": [ { "page": "(a)" }, { "page": "(a)" }, { "page": "(a)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 934, "char_count": 23960, "ocr_confidence": 0.751, "pagerank": { "raw": 4.456583025697791e-08, "percentile": 0.27935470369121906 }, "sha256": "4fb31bfe8f69c166c60ff792e8bd374473f1377fd869f62072bf2d689a15b588", "simhash": "1:49797c22d96b1528", "word_count": 3881 }, "last_updated": "2023-07-14T18:13:27.459138+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges BRYANT and ELMORE concur." ], "parties": [ "REBECCA S. WHITE, Plaintiff v. CURTIS COCHRAN, Defendant" ], "opinions": [ { "text": "GEER, Judge.\nPlaintiff Rebecca S. White appeals from an order entering judgment on the pleadings and dismissing for lack of subject matter jurisdiction this action brought against defendant Curtis Cochran, the Sheriff of Swain County. Ms. White had alleged that the sheriff\u2019s termination of her employment violated the Retaliatory Employment Discrimination Act (\u201cREDA\u201d) and amounted to a wrongful discharge in violation of public policy.\nThe sole basis argued in support of the trial court\u2019s dismissal of this action was Sheriff Cochran\u2019s contention that the North Carolina Department of Labor\u2019s notice of right to sue, naming the \u201cSwain County Sheriff\u2019s Department\u201d as the respondent, was insufficient to support Ms. White\u2019s suit against Sheriff Cochran. This contention, however, relates only to Ms. White\u2019s statutory claim for violation of REDA. We, therefore, hold that the trial court erred in dismissing, based on the right-to-sue letter, Ms. White\u2019s common law wrongful discharge claim.\nWith respect to the REDA claim, Ms. White has failed to indicate in her complaint whether she is suing Sheriff Cochran in his individual or in his official capacity. Based on our review of the complaint and the course of proceedings, we hold that Sheriff Cochran has been sued only in his official capacity. As a suit against a sheriff in his official capacity is synonymous with a suit against the sheriff\u2019s department, Ms. White did obtain the necessary right-to-sue letter. The trial court, therefore, also erred in dismissing Ms. White\u2019s statutory REDA claim.\nFacts\nMs. White filed her complaint on 9 October 2009 alleging the following facts. On 5 November 2008, Sheriff Cochran hired Ms. White as a detention officer at the Swain County Jail. On 24 January 2009, Ms. White slipped and fell at work on a floor that was being refinished. She immediately informed her supervisor that she had been injured from the fall, and an accident report was prepared by another employee of Sheriff Cochran. Ms. White was referred by her employer for medical treatment, and Sheriff Cochran was provided with copies of the medical records resulting from the treatment. Ms. White was disabled as a result of the fall until 25 February 2009.\nMs. White filed a claim with the North Carolina Industrial Commission and received benefits, including compensation and medical treatment. While Ms. White was out of work on temporary total disability, she received a letter dated 4 February 2009 that was titled \u201cContinuation of Coverage Rights Under COBRA.\u201d Ms. White contacted her employer, but she was unable to obtain any information regarding why the letter was sent to her.\nMs. White returned to work on 25 February 2009. After working on 25 February, 26 February, 3 March, 4 March, and 6 March 2009, she was advised by another detention officer that she was not to return to work until she talked to the jail administrator, Jenny Hyatt, on 9 March 2009. Ms. White went to Ms. Hyatt\u2019s office on 9 March 2009 and met with Ms. Hyatt and Martha Marr, another employee of Sheriff Cochran. At this meeting, Ms. Marr informed Ms. White, \u201c \u2018Your services here are no longer needed.\u2019 \u201d\nMs. White alleged that Sheriff Cochran \u201cfabricated reasons for terminating [her] when the actual motive for such termination was to retaliate against [Ms. White] for participating in a worker\u2019s compensation claim.\u201d Ms. White alleged that Sheriff Cochran\u2019s actions violated REDA, N.C. Gen. Stat. \u00a7 95-241 (2009), and constituted a wrongful discharge in violation of the public policy set out in \u00a7 95-241(a)(l)(a).\nMs. White asserted that the Superior Court of Swain County had jurisdiction under REDA because Ms. White had filed the action within 90 days of the date upon which the Commissioner of Labor had issued a right-to-sue letter. Ms. White attached to her complaint a 26 August 2009 right-to-sue letter issued by the North Carolina Department of Labor to Ms. White. The letter listed two file numbers with one naming the \u201cCounty of Swain\u201d as the respondent and the second naming the \u201cSwain County Sheriffs Department\u201d as the respondent.\nSheriff Cochran filed an answer to Ms. White\u2019s complaint on 16 December 2009 alleging a single affirmative defense: \u201cDefendant would have taken the action to terminate Plaintiff in the absence of her filing a workers compensation claim under Chapter 97 of the North Carolina General Statutes.\u201d On 6 January 2010, Sheriff Cochran filed an amended answer asking the court to award him reasonable costs and expenses, including attorneys\u2019 fees, under N.C. Gen. Stat. \u00a7 95-243(c) (2009).\nOn or about 28 April 2010, Sheriff Cochran filed a motion for judgment on the pleadings and motion to dismiss for lack of subject matter jurisdiction. Sheriff Cochran asserted (1) that \u201cthe undisputed facts appearing [in the pleadings] entitle Defendant to such judgment as a matter of law,\u201d and (2) that \u201cPlaintiff\u2019s claims are upon claims arising under N.C. Gen. Stat. 95-243(a) and this Court lacks jurisdiction as it pertains to this Defendant and Plaintiff\u2019s actions therefore should be dismissed.\u201d Sheriff Cochran served a Notice of Hearing of this motion on 30 April 2010, scheduling the motion for the 17 May 2010 session.\nThe trial court heard Sheriff Cochran\u2019s motion on 17 May 2010 and entered an order on 28 June 2010 granting Sheriff Cochran judgment on the pleadings and \u201c[alternatively and independently\u201d dismissing Ms. White\u2019s action for lack of subject matter jurisdiction. The trial court further explained:\nIt appeared to the Court upon the review of pleadings in this case and the arguments and authorities presented by counsel, that as a matter of law the allegations of the Plaintiffs Complaint and the attachments thereto, treated as true, are insufficient to state a claim upon which relief may be granted and therefore, the Defendant\u2019s Motion for Judgment on the Pleadings is granted. Further, as alternative and independent grounds, upon the review of pleadings and attachments thereto in this case and the arguments and authorities presented by counsel, the Court concludes that it has no jurisdiction over the subject matter of this case and Plaintiff\u2019s claims and therefore Defendant is entitled to a dismissal of Plaintiffs claims and action against him.\nMs. White timely appealed to this Court.\nDiscussion\n\u201cAs we have recognized, a complaint is subject to dismissal under Rule 12(b)(6) if 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. On the other hand, a motion for judgment on the pleadings pursuant to Rule 12(c) should only be granted when the movant clearly establishes that no material issue of fact remains to be resolved and that the movant is entitled to judgment as a matter of law.\u201d Cash v. State Farm Mut. Auto. Ins. Co., 137 N.C. App. 192, 201-02, 528 S.E.2d 372, 378 (internal citations and quotation marks omitted), aff\u2019d per curiam, 353 N.C. 257, 538 S.E.2d 569 (2000). We review decisions pursuant to Rule 12(b)(6) and 12(c) de novo.\nSheriff Cochran argued in the trial court and contends on appeal that Ms. White failed to state a claim for relief and that the trial court lacked subject matter jurisdiction because Ms. White sued Sheriff Cochran, while the Department of Labor\u2019s right-to-sue letter identified only the Sheriff\u2019s Department and the County as respondents. In making this argument, Sheriff Cochran has assumed that Ms. White\u2019s complaint only alleged a REDA claim. In fact, however, the complaint expressly asserted both (1) a statutory REDA claim under N.C. Gen. Stat. \u00a7 95-243(a) and (2) a claim for wrongful discharge in violation of public policy. We address each cause of action in turn.\nREDA\nN.C. Gen. Stat. \u00a7 95-241(a) provides that \u201c[n]o person shall discriminate or take any retaliatory action against an employee because the employee in good faith does or threatens to . . . [f]ile a claim or complaint, initiate any inquiry, investigation, inspection, proceeding or other action, or testify or provide information to any person with respect to . . . Chapter 97 of the General Statutes.\u201d In order to state a claim for relief under REDA, \u201ca plaintiff must show (1) that he exercised his rights as listed under N.C. Gen. Stat. \u00a7 95-241(a), (2) that he suffered an adverse employment action, and (3) that the alleged retaliatory action was taken because the employee exercised his rights under N.C. Gen. Stat. \u00a7 95-241(a).\u201d Wiley v. United Parcel Serv., Inc., 164 N.C. App. 183, 186, 594 S.E.2d 809, 811 (2004).\nPrior to filing suit, an employee must, within 180 days of an alleged violation, file a written complaint with the Commissioner of Labor alleging a violation of N.C. Gen. Stat. \u00a7 95-241. See N.C. Gen. Stat. \u00a7 95-242(a) (2009). \u201cIf the Commissioner determines after the investigation that there is not reasonable cause to believe that the allegation is true, the Commissioner shall dismiss the complaint, promptly notify the employee and the respondent, and issue a right-to-sue letter to the employee that will enable the employee to bring a civil action pursuant to G.S. 95-243.\u201d Id. Pursuant to N.C. Gen. Stat. \u00a7 95-243(a), \u201c[a]n employee who has been issued a right-to-sue letter . . . may commence a civil action in the superior court of the county where the violation occurred, where the complainant resides, or where the respondent resides or has his principal place of business.\u201d\nSheriff Cochran does not dispute that Ms. White\u2019s complaint contains sufficient factual allegations to state a violation of REDA. He argues, however, that the right-to-sue letter identified the respondent as the \u201cSwain County Sheriff\u2019s Department,\u201d while the complaint sued Curtis Cochran. Sheriff Cochran contends that the Sheriff\u2019s Department cannot be equated with Sheriff Cochran. His argument, however, overlooks the fact that a government official may be sued in his official capacity and/or in his individual capacity.\nA suit against a sheriff in his official capacity is a suit against the Office of the Sheriff. See Boyd v. Robeson Cnty., 169 N.C. App. 460, 466, 621 S.E.2d 1, 5 (2005) (\u201cThe official capacity claims [against the Sheriff and his employees] in this case are, therefore, actually claims against the office of the Sheriff of Robeson County.\u201d). Further, reference to the Sheriff\u2019s Department is simply another way of denoting the Office of the Sheriff. See also Layman ex rel. Layman v. Alexander, 343 F. Supp. 2d 483, 493 (W.D.N.C. 2004) (\"A claim against [Sheriff and his employees] in their official capacities constitutes a claim against the entity for which they act as agents, here the ... County Sheriffs Department.\u201d); Gantt v. Whitaker, 203 F. Supp. 2d 503, 508 (M.D.N.C. 2002) (holding that claims against sheriff and officer in their official capacities \u201cactually constitute a suit against the entity of which those officials are agents \u2014 in this case, the Office of Sheriff of Davie County\u201d), aff\u2019d per curiam, 57 Fed. Appx. 141 (4th Cir. 2003).\nHowever, as was true in Mullis v. Sechrest, 347 N.C. 548, 495 S.E.2d 721 (1998), the complaint, in this case, does not specify the capacity in which Curtis Cochran is being sued \u2014 in other words, whether Ms. White is suing him in his individual capacity, his official capacity, or both capacities. The Supreme Court stressed in Mullis that \u201c[i]t is a simple matter for attorneys to clarify the capacity in which a defendant is being sued.\u201d Id. at 554, 495 S.E.2d at 724. A plaintiff should indicate that capacity in the caption, in the allegations, and in the prayer for relief. Id., 495 S.E.2d at 724-25. \u201cThese simple steps will allow future litigants to avoid problems such as the one presented to us by this appeal.\u201d Id., 495 S.E.2d at 725. Fourteen years after Mullis, we are still confronted with the same problems. In order to decide whether the trial court properly allowed the motion to dismiss, we must first determine in which capacity Curtis Cochran has been sued.\nWhen, as here, the complaint does not specifically identify the defendant\u2019s capacity,\n\u201c[t]he crucial question for determining whether a defendant is sued in an individual or official capacity is the nature of the relief sought, not the nature of the act or omission alleged. If the plaintiff seeks an injunction requiring the defendant to take an action involving the exercise of a governmental power, the defendant is named in an official capacity. If money damages are sought, the court must ascertain whether the complaint indicates that the damages are sought from the government or from the pocket of the individual defendant. If the former, it is an official-capacity claim; if the latter, it is an individual-capacity claim; and if it is both, then the claims proceed in both capacities.\u201d\nId. at 552, 495 S.E.2d at 723 (quoting Meyer v. Walls, 347 N.C. 97, 110, 489 S.E.2d 880, 887 (1997)).\nThe complaint in this case seeks only money damages as relief. In order to determine whether those damages are sought from the governmental entity or from the pocket of the individual, \u201cit is appropriate to consider the course of the proceedings and allegations contained in the pleading to determine the capacity in which defendant is being sued.\u201d Id. at 553, 495 S.E.2d at 724. Our review of the allegations and the course of proceedings leads us to conclude that Sheriff Cochran was sued only in his official capacity.\nWe acknowledge that the caption, standing alone, would suggest that defendant was sued in his individual capacity since it refers to \u201cCurtis Cochran\u201d without mentioning the office of Sheriff. Nevertheless, the allegations identify the defendant solely as \u201cthe duly elected sheriff of Swain County, North Carolina\u201d without referencing Sheriff Cochran\u2019s county of residence, as is customary when suing a defendant in his individual capacity. See id. (concluding that defendant was sued in official capacity in part because initial allegation identified defendant as being employed by Board of Education even though same allegation identified defendant as citizen and resident of Mecklenburg County). Compare Schmidt v. Breeden, 134 N.C. App. 248, 257, 517 S.E.2d 171, 177 (1999) (holding that defendants were sued in individual capacities in part because complaint alleged defendants were citizens and residents of Charlotte, Mecklenburg County and only subsequently \u201clinked them to the Board [of Edu-cation] as agents\u201d).\nIn addition, the complaint repeatedly refers to Ms. White\u2019s \u201cjob assignment for the Defendant,\u201d \u201cher employment for the Defendant,\u201d and other \u201cemployee [s] of the Defendant.\u201d All of these allegations suggest an official capacity suit since Ms. White was working for the Office of the Sheriff and not as a personal employee of Curtis Cochran.\nSignificantly, the complaint does not assert separate claims for relief that distinguish between the Sheriff as her employer and the Sheriff as an individual \u2014 both claims for relief allege a wrongful termination of her employment. See Mullis, 347 N.C. at 553, 495 S.E.2d at 724 (noting, in holding that plaintiff brought only official capacity claim, that plaintiff asserted only single claim for relief that Board was negligent based on negligent acts of individual defendant who was acting as Board\u2019s agent).\nEven in the prayer for relief, Ms. White seeks \u201cfrom the Defendant compensatory and punitive damages for wrongful discharge.\u201d She does not include any indication \u2014 such as by using the phrase \u201cjoint and several\u201d \u2014 that she is seeking damages both from the Office of the Sheriff or Sheriff\u2019s Department and from Curtis Cochran individually. Compare Schmidt, 134 N.C. App. at 257, 517 S.E.2d at 177 (in concluding that relief was sought in defendants\u2019 individual capacities, pointing out that plaintiff sought relief jointly and severally).\nIn addition, Ms. White alleged that the superior court had jurisdiction over her action based on the right-to-sue letter attached to the complaint. As indicated above, that right-to-sue letter identified the respondent as the \u201cSwain County Sheriffs Department.\u201d That letter, therefore, also suggests that this lawsuit involves only official capacity claims.\nFinally, this Court has held that \u201cin the absence of a clear statement of defendant\u2019s capacity a plaintiff is deemed to have sued a defendant in his official capacity.\u201d Reid v. Town of Madison, 137 N.C. App. 168, 172, 527 S.E.2d 87, 90 (2000). Here, as in White v. Crisp, 138 N.C. App. 516, 520, 530 S.E.2d 87, 89 (2000), \u201c[i]n view of [the complaint\u2019s] allegations and the absence of any clear indication that defendant. . . is being sued in his individual capacity, we treat [plaintiff\u2019s] complaint as a suit against defendant. . . solely in his official capacity.\u201d\nWe have concluded that Ms. White has, in this action, brought a claim against Sheriff Cochran solely in his official capacity. Ms. White has attached to her complaint a right-to-sue letter allowing her to sue Sheriff Cochran in his official capacity. Consequently, the superior court had jurisdiction over Ms. White\u2019s claim under REDA. Because Sheriff Cochran has not argued that any other basis existed for dismissing Ms. White\u2019s REDA claim, we reverse the dismissal of that claim.\nWrongful Discharge\nMs. White also argues that her complaint asserts a separate claim for wrongful discharge in violation of public policy. Our Supreme Court recognized an exception to the employment at will doctrine in Coman v. Thomas Mfg. Co., 325 N.C. 172, 175, 381 S.E.2d 445, 447 (1989) (quoting Sides v. Duke Univ., 74 N.C. App. 331, 342, 328 S.E.2d 818, 826 (1985)):\n\u201c[W]hile there may be a right to terminate a contract at will for no reason, or for an arbitrary or irrational reason, there can be no right to terminate such a contract for an unlawful reason or purpose that contravenes public policy. A different interpretation would encourage and sanction lawlessness, which law by its very nature is designed to discourage and prevent.\u201d\nFollowing Coman, the Supreme Court, in Amos v. Oakdale Knitting Co., 331 N.C. 348, 353, 416 S.E.2d 166, 169 (1992), clarified that \u201cat the very least public policy is violated when an employee is fired in contravention of express policy declarations contained in the North Carolina General Statutes.\u201d\nAlthough Sheriff Cochran makes no argument regarding Ms. White\u2019s wrongful discharge claim, a review of the complaint indicates that it alleges both a violation of REDA and a common law claim for wrongful discharge in violation of public policy. The complaint specifically asserts that Ms. White \u201cwas discharged from her employment with the Defendant in violation of the state public policy set out in N.C.G.S. \u00a7 95-241(a)(l)a.\u201d The complaint then states that \u201c[a]s a direct and proximate result of the Defendant\u2019s violation of state statutory law and the wrongful discharge of the Plaintiff, the Plaintiff has incurred substantial damages including lost wages, lost benefits, and other economic losses that were proximately caused by the retaliatory action of the Defendant.\u201d The complaint further confirms the intent to assert two separate causes of action by seeking both punitive damages and treble damages pursuant to N.C. Gen. Stat. \u00a7 95-243 for willful violation of N.C. Gen. Stat. \u00a7 95-241.\nOur courts have previously held that a plaintiff may pursue both a statutory claim under REDA and a common law wrongful discharge claim based on a violation of REDA. As this Court explained in Whitings v. Wolfson Casing Corp., 173 N.C. App. 218, 222, 618 S.E.2d 750, 753 (2005), \u201c[b]oth the Workers\u2019 Compensation Act and the Retaliatory Employment Discrimination Act (REDA) are sources of policy establishing an employee\u2019s legally protected right of pursuing a workers\u2019 compensation claim. An action pursuant to REDA is a supplemental remedy to the common law claim of wrongful discharge.\u201d See also Tarrant v. Freeway Foods of Greensboro, Inc., 163 N.C. App. 504, 509, 593 S.E.2d 808, 812 (2004) (\u201cIn this case, plaintiff has alleged sufficient facts to survive a motion to dismiss on the claim of wrongful discharge in violation of public policy. Plaintiff claims that she was fired because she asserted her rights under the Workers\u2019 Compensation Act.\u201d); Brackett v. SGL Carbon Corp., 158 N.C. App. 252, 260, 580 S.E.2d 757, 762 (2003) (\u201c[A] plaintiff may state a claim for wrongful discharge in violation of public policy where he or she alleges the dismissal resulted from an assertion of rights under the Workers\u2019 Compensation Act.\u201d).\nMs. White has argued that \u201ca sheriff can be sued in his individual capacity for wrongful discharge of an employee in violation of public policy,\u201d citing Phillips v. Gray, 163 N.C. App. 52, 592 S.E.2d 229 (2004). We have, however, concluded that the complaint only sues Sheriff Cochran in his official capacity. Nonetheless, a wrongful discharge claim may be asserted against a sheriff in his official capacity subject to the defense of sovereign immunity. See Efird v. Riley, 342 F. Supp. 2d 413, 426 (M.D.N.C. 2004) (holding that plaintiff could assert official capacity claim against sheriff for wrongful discharge if sovereign immunity was waived, although ultimately concluding that allegations of complaint did not allege any violation of state public policy); Hill v. Medford, 158 N.C. App. 618, 627, 582 S.E.2d 325, 331 (Martin, J., dissenting), (holding that at will employee of Sheriff did not have claim for breach of contract but did have wrongful discharge claim against Sheriff in his official capacity, although governmental immunity would limit potential recovery), rev \u2019d per curiam for reasons stated in the dissent, 357 N.C. 650, 588 S.E.2d 467 (2003).\nThe issue of sovereign immunity is not before this Court. Defendant\u2019s initial answer and amended answer did not assert the defense of sovereign immunity. The day after the hearing on the motions at issue in this appeal, defendant filed a second motion for judgment on the pleadings and motion to dismiss for lack of jurisdiction on the grounds that Ms. White had failed to join Sheriff Cochran\u2019s surety as required by N.C. Gen. Stat. \u00a7 58-76-5 (2009) and that the sheriff was, therefore, immune from liability. That motion has not yet been decided, and nothing in this opinion should be deemed as expressing any view on that motion or the defense of sovereign immunity.\nReversed.\nJudges BRYANT and ELMORE concur.", "type": "majority", "author": "GEER, Judge." } ], "attorneys": [ "The Moore Law Office, by George W. Moore, for plaintiff-appellant.", "Melrose, Seago & Lay, PA, by Kimberly C. Lay, for defendantappellee." ], "corrections": "", "head_matter": "REBECCA S. WHITE, Plaintiff v. CURTIS COCHRAN, Defendant\nNo. COA10-1191\n(Filed 4 October 2011)\n1. Public Officers and Employees \u2014 retaliatory discharge against sheriff \u2014 right-to-sue letter \u2014 subject matter jurisdiction\nThe trial court erred by dismissing plaintiffs Retaliatory Employment Discrimination Act claim for lack of subject matter jurisdiction where plaintiffs right-to-sue letter from the North Carolina Department of Labor identified only the Sheriffs Department and the County as respondents while the complaint referred to the Sheriff by name. The allegations in the right-to-sue letter suggest an official capacity suit; moreover, an action is deemed to be in an official capacity in the absence of a clear statement of defendant\u2019s capacity.\n2. Public Officers and Employees \u2014 common law wrongful discharge \u2014 right-to-sue letter \u2014 not pertinent\nThe trial court erred by dismissing plaintiff\u2019s common law wrongful discharge claim against a sheriff based on an alleged insufficiency in the right-to-sue letter. That letter related only to a statutory claim for violation of the Retaliatory Employment Discrimination Act. The issues of sovereign immunity or joinder of the surety were not determined on this appeal.\nAppeal by plaintiff from order entered 28 June 2010 by Judge Bradley B. Letts in Swain County Superior Court. Heard in the Court of Appeals 9 March 2011.\nThe Moore Law Office, by George W. Moore, for plaintiff-appellant.\nMelrose, Seago & Lay, PA, by Kimberly C. Lay, for defendantappellee." }, "file_name": "0125-01", "first_page_order": 135, "last_page_order": 144 }