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    "judges": [
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    "parties": [
      "KERRY BIGELOW & CLYDE CLARK, Plaintiffs-Appellants v. TOWN OF CHAPEL HILL & ROGER STANCIL, in his official capacity as MANAGER of the TOWN OF CHAPEL HILL and in his personal capacity, insofar as he was operating outside of his job description, Defendants-Appellees"
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      {
        "text": "McGEE, Judge.\nKerry Bigelow (Bigelow) and Clyde Clark (Clark) (together, Plaintiffs) were fired from their employment as sanitation workers for the Town of Chapel Hill (Chapel Hill) on 29 October 2010. Roger Stancil (Stancil) was Chapel Hill\u2019s town manager at that time. During their employment with Chapel Hill, Plaintiffs rode on town garbage trucks and collected refuse from roll-out canisters, as well as yard waste. The firings were based upon findings that Plaintiffs had engaged in insubordination, threatening and intimidating behavior, and had been unsatisfactory in their job performances. Plaintiffs requested a hearing before Chapel Hill\u2019s Personnel Appeals Committee (the Committee) to review the decision to terminate Plaintiffs\u2019 employment. Hearings were conducted on 3 and 9 February 2011. By split votes, the Committee recommended that Stancil uphold the decision to fire Plaintiffs.\nPlaintiffs filed this action on 4 December 2011. In their complaint, Plaintiffs alleged that Chapel Hill and Stancil, in both his official capacity and his personal capacity, (together, Defendants), wrongfully discharged Plaintiffs from their jobs and violated certain of Plaintiffs\u2019 rights protected under the North Carolina Constitution.\nDefendants answered Plaintiffs\u2019 complaint on 5 December 2011. Defendants moved for judgment on the pleadings on 20 April 2012. Defendants\u2019 motion was heard on 14 May 2012 and, by order entered 29 May 2012, the trial court granted Defendants\u2019 motion on the pleadings. Plaintiffs appeal. Additional facts and allegations relevant to this opinion are included below.\nI.\nThe sole issue on appeal is whether the trial court erred in granting Defendants\u2019 Rule 12(c) motion for judgment on the pleadings. We affirm as to Stancil in his individual capacity, but vacate and remand the remainder of the trial court\u2019s 29 May 2012 order for further action.\nII.\nPlaintiffs present the following question on appeal: \u201cDid the superior court err when it dismissed Plaintiffs\u2019 four claims based on the pleadings, pursuant to N.C. Rules of Civil Procedure 12(c)?\u201d\n\u201cThis Court reviews a trial court\u2019s grant of a motion for judgment on the pleadings de novo.\u201d Carpenter v. Carpenter, 189 N.C. App. 755, 757, 659 S.E.2d 762, 764-65 (2008) (citation omitted). \u201cA motion for judgment on the pleadings should not be granted unless the movant clearly establishes that no material issue of fact remains to be resolved and that he is entitled to judgment as a matter of law.\u201d Id. at 761, 659 S.E.2d at 767 (citation omitted).\n[Rule 12(c)\u2019s] function is to dispose of baseless claims or defenses when the formal pleadings reveal their lack of merit.....Judgment on the pleadings is a summary procedure and the judgment is final. Therefore, each motion under Rule 12(c) must be carefully scrutinized lest the nonmoving party be precluded from a full and fair hearing on the merits. The movant is held to a strict standard and must show that no material issue of facts exists and that he is clearly entitled to judgment. The trial court is required to view the facts and permissible inferences in the light most favorable to the nonmoving party. All well pleaded factual allegations in the nonmoving party\u2019s pleadings are taken as true and all contravening assertions in the movant\u2019s pleadings are taken as false. All allegations in the nonmovant\u2019s pleadings, except conclusions of law, legally impossible facts, and matters not admissible in evidence at the trial, are deemed admitted by the movant for purposes of the motion.\nRagsdale v. Kennedy, 286 N.C. 130, 137, 209 S.E.2d 494, 499 (1974) (citations omitted). \u201c \u2018Judgments on the pleadings are disfavored in law[.]\u2019 \u201d Carpenter, 189 N.C. App. at 757, 659 S.E.2d at 764-65 (citations omitted).\n\u201c \u2018A motion for judgment on the pleadings is allowable only where the pleading of the opposite party is so fatally deficient in substance as to present no material issue of fact[.] A complaint is fatally deficient in substance, and subject to a motion by the defendant for judgment on the pleadings if it fails to state a good cause of action for plaintiff and against defendant^]\u2019 \u201d\nGeorge Shinn Sports, Inc. v. Bahakel Sports, Inc., 99 N.C. App. 481, 486, 393 S.E.2d 580, 583 (1990) (citations omitted).\nUnder the \u201cnotice theory\u201d of pleading contemplated by Rule 8(a)(1), detailed fact-pleading is no longer required. A pleading complies with the rule if it gives sufficient notice of the events or transactions which produced the claim to enable the adverse party to understand the nature of it and the basis for it, to file a responsive pleading, and - by using the rules provided for obtaining pretrial discovery - to get any additional information he may need to prepare for trial.\nSutton v. Duke, 277 N.C. 94, 104, 176 S.E.2d 161, 167 (1970). A motion to dismiss is appropriately granted when a complaint states \u201ca defective cause of action,\u201d but not when a complaint states \u201ca defective statement of a good cause of action.\u201d Id. at 105-06, 176 S.E.2d at 168 (citations omitted). .\u201c[0]ther provisions of Rule 12, the rules governing discoveiy, and the motion for summary judgment provide procedures adequate to supply information not furnished by the complaint.\u201d Id. \u201c[A] document attached to the moving party\u2019s pleading may not be considered in connection with a Rule 12(c) motion unless the non-moving party has made admissions regarding the document.\u201d Weaver v. Saint Joseph of the Pines, Inc., 187 N.C. App. 198, 205, 652 S.E.2d 701, 708 (2007).\nIII. Consideration of Alleged Facts for a Motion for Judgment on the Pleadings\nWe wish to make clear that what follows is not a statement of facts, but a recitation of Plaintiffs\u2019 allegations as pleaded, and some additional information from the pleadings favorable to Plaintiffs. Defendants\u2019 alleged facts are not included below unless favorable to Plaintiffs. Kennedy, 286 N.C. at 137, 209 S.E.2d at 499. We are in no manner endorsing Plaintiffs\u2019 factual allegations. Plaintiffs\u2019 complaint, along with Defendants\u2019 answer and documents attached to the pleadings, when considered in the light most favorable to Plaintiffs, and taking Plaintiffs allegations as true, show the following: Plaintiffs, both African Americans, worked together as employees of Chapel Hill, beginning in the summer of 2009. Plaintiffs rode on the rear of collection trucks and emptied garbage bins into the trucks. Clark was hired as a sanitation worker by Chapel Hill in 1998. Bigelow drove large garbage trucks for the City of Burlington for eighteen years before being hired as a sanitation worker by Chapel Hill in 2007, where his \u201cmunicipal sanitation driving experience placed him at the highest salary range for sanitation workers.\u201d Bigelow received a performance evaluation of \u201coutstanding\u201d in 2008, and also received an \u201cexceeds expectations\u201d evaluation in 2009.\nAccording to Plaintiffs, Chapel Hiil posted a job opening for a driving position in December 2009. Bigelow applied for the position. Darrell Town (Town), a white male hired shortly before Chapel Hill hired Bigelow, also applied. Town did not have experience driving garbage collection trucks. Prior to being hired by Chapel Hill, he had worked for less than four and a half years at a private recycling company. Town was hired at the low end of the salary range for sanitation workers.\nPlaintiffs alleged that both Bigelow and Town were found qualified and both were interviewed. Bigelow\u2019s supervisor, an African American man, indicated that Bigelow would be a good choice for the job due to his prior heavy truck driving experience, his many years of working in sanitation, and because he was \u201ca good person[.]\u201d However, the Superintendent of Solid Waste, Harv Howard (Howard), a white male, selected Town, the less-qualified candidate, over the more experienced Bigelow. Bigelow filed a grievance through normal procedures on 12 February 2010. He alleged race discrimination in the hiring of Town, the less-experienced person, for the driving position. Racial discrimination in hiring is prohibited by [a Chapel Hill] town ordinance and written policies \u201cpromulgated by Defendant Stancil,\u201d a white male.\nPlaintiffs alleged Bigelow had received no response from Chapel Hill by early June 2010, even though he had filed multiple grievances in February, March, and April. Bigelow retained an attorney who, in June 2010, wrote a \u201ccourtesy letter\u201d to Chapel Hill, indicating that Bigelow was going to file a charge with the Equal Employment Opportunity Commission (EEOC) against Defendants. Bigelow filed an EEOC charge against Defendants on 9 June 2010.\nThe following day, Valerie Meicher (Meicher) sent a memorandum on behalf of Chapel Hill thanking Bigelow \u201c \u2018for participating in the recent selection interviews[,]\u2019 \u201d and indicated that, \u201c \u2018in response to a complaint[,]\u2019 \u201d Chapel Hill had \u201cdetermined there were inconsistencies in the administration of the interview process.\u201d The \u201ccomplaint\u201d was in actuality the multiple grievances filed by Bigelow. Bigelow was invited to speak with a Chapel Hill official \u201cabout the date, time, and place of another interview.\u201d Chapel Hill had three different versions of this memorandum circulating \u201cwithin . . . Stancil\u2019s management team\u201d after Chapel Hill became aware of the EEOC charge. Chapel Hill also sent Bigelow\u2019s attorney a letter stating that it had finally completed its investigation into Bigelow\u2019s grievances. Defendants had placed Bigelow in the pool of applicants qualified for the driving position, and had interviewed him, but stated to the EEOC that they had hired the lesser-qualified Town because Bigelow was unqualified for the position.\nPlaintiffs alleged that \u201cDefendants engaged in heated arguments about whether to admit that Superintendent Howard\u2019s selection of the less qualified white applicant over... Bigelow was race discrimination.\u201d Plaintiffs alleged such an admission would jeopardize certain federal funding Chapel Hill received, and would give a boost to \u201cUnion organizing efforts.\u201d Plaintiffs alleged Chapel Hill knew the hiring of Town over Bigelow was discriminatory and that responding \u201cin an honest, accurate, and timely manner\u201d to Bigelow\u2019s \u201cchallenge\u201d would create \u201ca crisis within the Public Works Department.\u201d Plaintiffs also alleged that Stancil personally endorsed delay tactics that violated his own policies and the policies of Chapel Hill. Meicher reported directly to Stancil concerning the Bigelow issue. Meicher and Howard both resigned their \u201cgood jobs with [Chapel Hill] in the fall of 2010, as Defendants carried out the decision to discharge Plaintiffs.\u201d\nAccording to Plaintiffs\u2019 complaint, they were penalized for other actions they took that affected Chapel Hill. In mid-March 2010, Clark complained to Howard concerning dangerous activities undertaken by the driver of the truck on which Clark and Bigelow worked. In early March, the driver, James Jones (Jones) was parking in the center (turn) lane of the five-lane Martin Luther King Boulevard in Chapel Hill, causing Clark to have to run across two lanes of traffic to collect garbage bins. Clark then had to drag the bins back across the two lanes of traffic to empty them into the truck. Bigelow took photographs of this practice, and when Jones saw Bigelow taking photographs, Jones \u201csped up the hill, leaving both of his collectors with no protection in the middle of the Boulevard.\u201d When Clark complained to Howard, he showed Howard some of those photographs.\nPlaintiffs alleged that Howard responded to Clark\u2019s concerns by stating that he \u201cwas not interested in the complaints about unsafe working conditions, and that [] Clark should \u2018not let [] Bigelow put you into something you can\u2019t get out of.\u2019 \u201d Jones was never \u201ccounseled or disciplined\u201d for his unsafe driving practices, and drivers for Chapel Hill continued to engage in unsafe driving practices. Because drivers and collectors were not paid hourly, they received the same amount no matter how long it took to complete a route. Drivers rushed to complete routes as quickly as possible so they could take on second jobs \u201cto supplement the low pay of [Chapel Hill].\u201d Chapel Hill and Stancil were aware of these \u201cincentive [s] for the workers to cut safety comers [.]\u201d\nAccording to Plaintiffs\u2019 complaint, Chapel Hill had a policy, promulgated by Stancil on 9 November 2007, which required Stancil to expediently and thoroughly investigate complaints of safety violations and discrimination, resolve issues, and \u201c \u2018learn from the incidents] and revise expectations and Policy as appropriate.\u2019 \u201d Stancil did not follow this policy in response to Plaintiffs\u2019 complaints.\nPlaintiffs further alleged that Howard responded to Plaintiffs\u2019 complaints by requiring a meeting on 18 March 2010, and by directing Larry Stroud (Stroud), the Solid Waste Supervisor, to tell Plaintiffs\u2019 co-workers that Plaintiffs \u201c \u2018were messing up everything for the guys, and . . . that the guys would probably end up working 10 hours a day.\u2019 \u201d Howard and Stroud \u201cengaged in a campaign against Plaintiffs, saying [Plaintiffs] were trying to take away\u201d the system whereby collectors could leave as soon as they finished their routes. Plaintiffs were at the meeting, and were singled out by Howard and Stroud, which resulted in co-workers \u201cglaring\u201d at Plaintiffs and telling them to stop filing grievances. Chapel Hill retaliated against Bigelow by informing Public Works employees that Bigelow had caused Jones to lose his driving job.\nPlaintiffs began posting Union notices and articles on the employee bulletin board in early March 2010, and began talking with other employees about the N.C. Public Service Workers Union, which had made several earlier attempts to organize workers in Chapel Hill. On 23 March 2010, Defendants engaged Capital Associated Industries (CAI), \u201ca right-wing consulting company that advertises it helps municipalities prevent unions from gaining a foothold in their workplacesf,]\u201d to \u201c \u2018uncover\u2019 and \u2018understand\u2019 the \u2018recent allegations in the Public Works Department^]\u2019 \u201d CAI was to investigate the issues surrounding Bigelow and Clark, and then give a \u201c \u2018summary report and recommendations to the [Chapel Hill] Town Attorney.\u2019 \u201d Plaintiffs alleged, \u201con information and belief,\u201d that the purpose of having CAI provide a report to the Chapel Hill town attorney was to protect its contents through attorney-client privilege.\nPlaintiffs claim that they continued to \u201cassociate and to speak out about matters of important public policy,\u201d including discrimination and workplace safety. They also joined the N.C. Public Service Workers Union, UE-150, in April 2010. Chapel Hill was aware of Plaintiffs\u2019 union status. Plaintiffs and the union \u201chelped other workers file grievances in the spring and summer of 2010.\u201d Plaintiffs asked the mayor and town council of Chapel Hill to insure that deadlines on responding to grievances were followed and that workers\u2019 rights to \u201c \u2018meet and confer\u2019 \u201d were upheld. Defendants were upset that Plaintiffs had contacted the mayor. Stancil\u2019s strategy was to \u201cdig up some dirt\u201d on Plaintiffs and \u201cdischarge them, in the hopes this would avert a crisis\u201d in the Public Works Department.\nPlaintiffs alleged that, in mid-July 2010, a Chapel Hill resident called and left a complaint related to Bigelow and Clark. At a later Committee hearing, this resident was referred to by the pseudonym, \u201cMs. Johnson\u201d (Johnson) because she wished to remain anonymous. Johnson said a political fundraiser was to be held in her neighborhood, that it was to be attended by Vice President Biden, and that she had asked Plaintiffs to take more yard waste so her yard \u201cwould look nice for the Vice President.\u201d Johnson stated that the \u201cguys on the back of the truck said something like \u2018who the h*** is paying for a $500 room at the Carolina Inn,\u2019 and \u2018he\u2019s not here to see the common man.\u2019 \u201d Johnson said this response upset her, and that she \u201c \u2018felt threatened\u2019 and was afraid to report the interaction\u201d lest she be \u201c \u2018retaliated against.\u2019 \u201d\nThat same day, Richard Terrell (Terrell), a member of the Public Works management team, visited Johnson\u2019s neighborhood to investigate. Terrell determined that the brush had been collected and that the only remaining issue was whether Bigelow and/or Clark had made inappropriate remarks to Johnson. Terrell \u201cconcluded that if the remarks were deemed inappropriate, \u2018counseling, oral or written warning\u2019 would be available\u201d for Plaintiffs.\nAccording to Plaintiffs, Johnson emailed photographs to Chapel Hill on 9 September 2010. The photographs showed \u201c \u2018what was left on Sandy Creek [Ed.]\u2019 in front of her house,\u201d and Johnson stated she was tired of having to rake the street after the crew had collected the yard debris. Johnson refused to be interviewed by CAI.\nFollowing the departure of Howard and Meicher from employment by Chapel Hill, Plaintiffs were placed on administrative leave and instructed to stay off Chapel Hill property. Plaintiffs \u201cwere given no specific charges, written or oral, when they were ejected from [Chapel Hill] property or at any time after that before they were fired.\u201d Chapel Hill\u2019s policy is to\nafford its employees certain due process rights[,] . . . [including] providing] \u2018\u2018specific\u201d performance problems with the employee in a counseling session, and then two more written warnings, before termination. Here, where the initial complaints involved poor performance (not picking up yard waste), these warnings were required. In this case, no counseling!] or any disciplinary meetings were ever provided [to Plaintiffs] before they were summarily discharged.\nChapel Hill fired Plaintiffs in late October 2010.\nSubsequent to Plaintiffs\u2019 firings, the Committee held hearings to address the issues surrounding the firings. Plaintiffs alleged that during the hearings, the voices of two unidentified women were \u201cpiped in to the [Chapel Hill] Library conference room.\u201d There was no way for Plaintiffs to identify to whom the voices belonged. The two women read prepared statements and would not answer any questions. \u201cIt is not known who wrote the statements for them, or when they were written.\u201d The women stated they were told all they would have to do was read the written statements, and that they would not have to answer any questions.\nDefendants attached the Committee findings and reports to their answer. We therefore consider these reports only to the extent they support Plaintiffs\u2019 claims. The Committee consisted of a five-person panel. The Committee voted three to two in favor of upholding Bigelow\u2019s termination by Chapel Hill, and voted four to one in favor of upholding Clark\u2019s termination.\nThe following information was included in Committee documents attached to Defendants\u2019 answer. Committee members expressed concern that, though Bigelow\u2019s conduct was confrontational, the situation should have been handled with progressive disciplinary action, and that Chapel Hill failed to substantiate that Bigelow\u2019s behavior \u201crose to the level of threatening and intimidating behavior or detrimental personal conduct.\u201d Members were \u201cunconvinced\u201d that the anonymous \u201ctestimony\u201d of one of the female witnesses \u201ccorroborated the allegation of threatening and intimidating behavior,\u201d especially because that witness stated that, though she found Bigelow\u2019s behavior \u201c \u2018rude\u2019 \u201d and felt he had not done a satisfactory job, she did not want him fired. \u201cShe just wanted her old crew back, a crew which included [] Bigelow.\u201d Members were concerned that they were not allowed to question the anonymous witnesses and therefore \u201ccould not get the information necessary to come to a determination.\u201d They were further \u201ctroubled by the lack of a clear response from [Chapel Hill] regarding exactly which public complaints had been independently verified by a member of [Chapel Hill] management, and how many different incidents the complaints actually referenced.\u201d Members believed that Bigelow\u2019s conduct towards co-workers was \u201cbehavior . . . tolerated as part of the culture of the department.\u201d Members found that Chapel Hill did not follow its own policies before it terminated Bigelow. There was no direct evidence that Bigelow had been informed that his behavior was inappropriate, or warned that failure to amend his behavior could lead to termination. Two members cited Chapel Hill policy: \u201c \u2018Normally employees receive counseling and several warnings and are given adequate time and assistance such as training or coaching before disciplinary actions result from unsatisfactory job performance.\u2019 \u201d These members felt that Chapel Hill\u2019s failure to comply with its own policy \u201ccontributed to the escalation of a problem that might have been resolved with appropriate warnings and counseling[.]\u201d These members were particularly concerned that Chapel Hill knew of the complaints \u201cearly on\u201d but did not inform Bigelow, nor provide the counseling or warnings dictated by policy that could have allowed Bigelow to address the offending behavior.\nWith respect to Clark, different members believed either that Clark was being unfairly held responsible for some of Bigelow\u2019s actions, that Clark\u2019s conduct was merely \u201cdiscourteous\u201d and should have been handled through \u201cthe progressive disciplinary procedures outlined in [Chapel Hill\u2019s] personnel manual,\u201d or that Chapel Hill had failed to prove the alleged behavior. One member was troubled that previous disciplinary actions related to Clark that were presented by Chapel Hill occurred before 2006, and that the only recent written warning concerned Clark\u2019s attendance, not inappropriate behavior.\nWe reiterate that none of the above allegations constitute established facts. They are alleged facts, and reasonable inferences therefrom, included in this opinion solely for our Rule 12(c) analysis.\nWe note that Defendants seem to misconstrue how documents attached to Defendants\u2019 pleadings are to be considered when ruling on Defendants\u2019 Rule 12(c) motion. Defendants cite heavily to certain findings made by the Committee and portions of the CAI report that support Defendants\u2019 argument that Plaintiffs were discharged for legitimate, not wrongful, reasons. For instance, Defendants state in their brief: \u201cAs established above, the CAI report found that Plaintiffs had directly contributed to low morale in the department, created fear among residents to the point where citizens were afraid to interact with [Chapel Hill] employees, [and] were consistently insubordinate and disrespectful to their supervisorf.]\u201d Alleged facts in documents attached to Defendants\u2019 pleadings, just as alleged facts in Defendants\u2019 pleadings, are not considered in Defendants\u2019 motion for judgment on the pleadings unless Plaintiffs have admitted the alleged facts, or the alleged facts support Plaintiffs\u2019 claims. Ragsdale, 286 N.C. at 137, 209 S.E.2d at 499; see also Weaver, 187 N.C. App. at 205, 652 S.E.2d at 708. The fact that findings in the documents might support a conclusion that Plaintiffs were discharged for lawful and legitimate reasons cannot factor in our review of the trial court\u2019s decision to grant Defendants\u2019 motion on the pleadings.\nIV. Wrongful Discharge\nPlaintiffs\u2019 fourth claim is for wrongful discharge. We limit this portion of the opinion to the wrongful discharge claim against Chapel Hill.\nAn employer wrongfully discharges an at-will employee if the termination is done for \u201can unlawful reason or purpose that contravenes public policy.\u201d As stated in Amos, the public-policy exception was \u201cdesigned to vindicate the rights of employees fired for reasons offensive to the public policy of this State.\u201d This language contemplates a degree of intent or wilfulness on the part of the employer. In order to support a claim for wrongful discharge of an at-will employee, the termination itself must be motivated by an unlawful reason or purpose that is against public policy.\nGarner v. Rentenbach Constructors Inc., 350 N.C. 567, 571-72, 515 S.E.2d 438, 441 (1999) (citations omitted).\nAlthough the definition of \u201cpublic policy\u201d approved by this Court does not include a laundry list of what is or is not \u201cinjurious to the public or against the public good,\u201d at 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.\nAmos v. Oakdale Knitting Co., 331 N.C. 348, 353, 416 S.E.2d 166, 169 (1992) (footnote omitted). However, \u201c[ujnder the rationale of [Supreme Court precedent] something more than a mere statutory violation is required to sustain a claim of wrongful discharge under the public-policy exception.\u201d Garner, 350 N.C. at 571, 515 S.E.2d at 441. \u201c[A] degree of intent or wilfulness on the part of the employer [is required].\u201d Id. at 572, 515 S.E.2d at 441. \u201c[T]he termination itself must be motivated by an unlawful reason or puipose that is against public policy.\u201d Id.\nAlthough Plaintiffs\u2019 complaint is not a model of clarity, Plaintiffs need only to allege facts sufficient to support a claim that their firing was \u201cmotivated by an unlawful reason or purpose that is against public policy.\u201d Id. Plaintiffs alleged they were fired in retaliation for actions in which they were legally permitted to engage, and that this constituted a violation of public policy. If these allegations are supported by alleged facts in the pleadings, Plaintiffs have pled a valid claim. Kennedy, 286 N.C. at 137, 209 S.E.2d at 499.\nFirst, Plaintiffs\u2019 complaint alleged that Bigelow took photographs of unsafe driving conditions, and that Clark used those photos and lodged a complaint with Howard. Howard\u2019s alleged response was that he was not interested, and that Clark should not let Bigelow \u201c \u2018put you into something you can\u2019t get out of.\u2019 \u201d\nChapter 95, Article 21 of the North Carolina General Statutes is the Retaliatory Employment Discrimination Act (REDA). N.C. Gen. Stat. \u00a7 95-241 of REDA states:\n(a) No person shall discriminate or take any retaliatory action against an employee because the employee in good faith does or threatens to do any of the following:\n(1) File a claim or complaint, initiate any inquiry, investigation, inspection, proceeding or other action, or testify or provide information to any person with respect to any of the following:\nb. []Article 16 of this Chapter.\nN.C. Gen. Stat. \u00a7 95-241(a)(l)b. (2011). Article 16 is the Occupational Safety and Health Act of North Carolina (OSHANC). OSHANC states its legislative purpose in part as follows:\n(2) The General Assembly of North Carolina declares it to be its purpose and policy through the exercise of its powers to ensure so far as possible every working man and woman in the State of North Carolina safe and healthful working conditions and to preserve our human resources:\na. By encouraging employers and employees in their effort to reduce the number of occupational safety and health hazards at the place of employment, and to stimulate employers and employees to institute new and to perfect existing programs for providing safe and healthful working conditions;\nb. By providing that employers and employees have separate but dependent responsibilities and rights with respect to achieving safe and healthful working conditions;\nd. By building upon advances already made through employer and employee initiative for providing safe and healthful working conditions;\nh. By providing for appropriate reporting procedures with respect to occupational safety and health which procedures will help achieve the objectives of this Article and accurately describe the nature of the occupational safety and health problem;\ni. By encouraging joint employer-employee efforts to reduce injuries and diseases arising out of employment;\nN.C. Gen. Stat. \u00a7 95-126(2) (2011). \u201cThe primary purpose of both the federal and state provisions prohibiting retaliatory discrimination is to ensure that employees are not discouraged from reporting violations of [OSHANC].\u201d Brooks v. Stroh Brewery Co., 95 N.C. App. 226, 229, 382 S.E.2d 874, 877 (1989).\nSecond, Plaintiffs alleged they were fired for engaging in union activities, including recruiting and using union attorneys to assist Plaintiffs in helping other employees file grievances. N.C. Gen. Stat. \u00a7 95-81 states: \u201cNo person shall be required by an employer to abstain or refrain from membership in any labor union or labor organization as a condition of employment or continuation of employment.\u201d N.C. Gen. Stat. \u00a7 95-81 (2011).\nThird, Plaintiffs alleged that Chapel Hill retaliated against Bigelow for filing discrimination grievances, including Bigelow\u2019s grievance filed in response to the hiring of Town for the driving position. N.C. Gen. Stat. \u00a7 95-151 states: \u201cNo employer, employee, or any other person related to the administration of this Article shall be discriminated against in any work, procedure, or employment by reason of sex, race, ethnic origin, or by reason of religious affiliation.\u201d N.C. Gen. Stat. \u00a7 95-151 (2011). A retaliatory firing based upon an employee\u2019s filing of a claim of discrimination in the workplace clearly violates public policy and could support a wrongful discharge claim. Furthermore, Bigelow initiated an EEOC charge against Chapel Hill based upon his perceived lack of response to his discrimination grievance. Retaliation against an employee for filing an EEOC charge is also a violation of public policy. Brewer v. Cabarrus Plastics, Inc., 130 N.C. App. 680-81, 691, 504 S.E.2d 580, 586-87 (1998).\nFourth, Plaintiffs alleged that Chapel Hill violated their rights under the North Carolina Constitution by firing them for protected acts. Specifically, Plaintiffs alleged they were fired for acts protected by Article I, Section 14: \u201cFreedom of speech . . . shall never be restrained[.]\u201d N.C. Const, art. I, \u00a7 14. Plaintiffs alleged that they were fired for pro-union activities such as posting union notices and articles on the employee bulletin board and talking about the N.C. Public Service Workers Union with co-workers, speaking about dangerous workplace practices, and for political speech directed at a resident. Plaintiffs further alleged they were fired for acts protected by Article I, Section 19: \u201cNo person shall be . . . disseized of his . . . privileges ... or in any manner deprived of his . . . property, but by the law of the land. No person shall be denied the equal protection of the laws; nor shall any person be subjected to discrimination by the State because of race, color, religion, or national origin.\u201d N.C. Const, art. I, \u00a7 19. Plaintiffs alleged that they were deprived of property and privileges - their jobs - in a manner inconsistent with the \u201claw of the land.\u201d Specifically, they alleged that they were fired on the pretext of a report produced by an anti-union organization, when the actual reasons for their firings were those outlined in their complaint. Plaintiffs also alleged they were retaliated against, and fired, based in part on race. They alleged a continuing pattern of discrimination against Bigelow in promotion practices and handling of his discrimination grievances, and that discrimination played a significant part in the handling of the complaints of white residents. Violations of a plaintiffs rights under the North Carolina Constitution violate public policy and will support a claim of wrongful discharge from public employment. Whitings v. Wolfson Casing Corp., 173 N.C. App. 218, 222, 618 S.E.2d 750, 753 (2005); Johnson v. Mayo Yarns, Inc., 126 N.C. App. 292, 295-97, 484 S.E.2d 840, 843 (1997); Lenzer v. Flaherty, 106 N.C. App. 496, 514-15, 418 S.E.2d 276, 287 (1992).\nWhile we make no' determinations on the merits of Plaintiffs\u2019 wrongful discharge claim, we hold that Plaintiffs have sufficiently pled a claim for wrongful discharge. We vacate the trial court\u2019s dismissal of this claim against Chapel Hill and remand for further action.\nV. North Carolina Constitutional Claims\nPlaintiffs\u2019 remaining claims are all based in the North Carolina Constitution.\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. As plaintiff\u2019s rights are adequately protected by a wrongful discharge claim, a direct constitutional claim is not warranted. The trial court did not err when granting defendants\u2019 motion to dismiss based on plaintiff\u2019s free speech claim.\nPhillips v. Gray, 163 N.C. App. 52, 58, 592 S.E.2d 229, 233 (2004) (some citations omitted). \u201c[A]n adequate remedy, must provide the possibility of relief under the circumstances.\u201d Craig v. New Hanover Cty Bd. of Educ., 363 N.C. 334, 340, 678 S.E.2d 351, 355 (2009) (holding that when sovereign immunity bars a claim, no adequate state remedy exists, and the plaintiff may proceed directly under the North Carolina Constitution).\nPlaintiffs\u2019 complaint alleged that Chapel Hill \u201cpurchased liability insurance which waives any claim to immunity it or its employees may have.\u201d Defendants\u2019 answer admitted Chapel Hill had insurance \u201cwhich provides certain coverage to [Chapel Hill] with respect to Plaintiffs\u2019 claims\u201d but denied that Chapel Hill had waived any claim to immunity. Defendants\u2019 second defense is a plea of \u201csovereign and governmental immunity as a defense to all applicable claims asserted herein and to the extent not waived by the purchase of insurance[.]\u201d\nAs long as Defendants\u2019 sovereign immunity defense remains potentially viable for any or all of Plaintiffs\u2019 wrongful discharge-related claims, our Supreme Court\u2019s decision in Craig, 363 N.C. at 340,678 S.E.2d at 355, dictates that Plaintiffs\u2019 associated North Carolina constitutional claims are not supplanted by those claims. \u201cThis holding does not predetermine the likelihood that plaintiff will win other pretrial motions, defeat affirmative defenses, or ultimately succeed on the merits of his case. Rather, it simply ensures that an adequate remedy must provide the possibility of relief under the circumstances.\u201d Id.\n[T]he notice theory of pleading does not necessarily mean that there must be a full-blown trial. Utilizing the \u201cfacility of pretrial discovery, the real facts can be ascertained and by motion for summary judgment (or other suitable device) the trial court can determine whether as a matter of law there is any right of recovery on those facts.\u201d\nSutton, 277 N.C. at 104,176 S.E.2d at 167 (citation omitted).\nWe note that the reasoning in Craig may be applicable to situations other than loss of the ability to pursue an adequate state remedy because of sovereign immunity. The reasoning in Craig clearly does not extend to situations where a plaintiff has lost the right to pursue an adequate state remedy due to his own action.\n[T]he facts presented here are distinguishable from a case in which a plaintiff has lost his ability to pursue a common law claim due to expiration of the statute of limitations, for example. Sovereign immunity entirely precludes this plaintiff from moving forward with his common law claim; without being permitted to pursue his direct colorable constitutional claims, he will be left with no remedy for his alleged constitutional injuries.\nCraig, 363 N.C. at 340, 678 S.E.2d at 355-56.\nWe vacate that portion of the order dismissing the constitutional claims against Chapel Hill, and remand for further action consistent with this opinion.\nVI. Claims Against Stancil\nStancil was sued in both his official and individual capacities for his alleged actions in this matter. First, North Carolina does not recognize direct North Carolina constitutional claims against public officials acting in their individual capacities. Corum v. University of North Carolina, 330 N.C. 761, 789, 413 S.E.2d 276, 293 (1992). To the extent, if any, that Plaintiffs\u2019 constitutional claims were also against Stancil in his individual capacity, dismissal of those claims is affirmed. As for Plaintiffs\u2019 individual wrongful discharge claim against Stancil, our de novo review of the pleadings finds no factual allegations supporting Plaintiffs\u2019 conclusory allegation that \u201cStancil was acting outside the scope of his official duties in hiring\u201d CAI. Plaintiffs\u2019 complaint \u201cfails to state a good cause of action\u201d against Stancil in his individual capacity. George Shinn Sports, 99 N.C. App. at 486, 393 S.E.2d at 583 (citations omitted). We affirm the dismissal of all claims against Stancil acting in his individual capacity.\nConcerning Plaintiffs\u2019 claims against Stancil in his official capacity:\nAn official capacity suit, such as the one here, is \u201cmerely another way of pleading an action against the governmental entity.\u201d See also Moore v. City of Creedmoor, 345 N.C. 356, 367, 481 S.E.2d 14, 21 (1997) (official capacity claim under 42 U.S.C. \u00a7 1983 is only another way of pleading a claim against the governmental entity of which officer is an agent and \u201c[t]hus, where the governmental entity may be held liable for damages resulting from its official policy, a suit naming public officers in their official capacity is redundant\u201d). As a result, Oakwood\u2019s claims against Womack in his official capacity as Johnston County\u2019s Tax Collector are identical to its claims against Johnston County and our analysis of the viability of the Johnston County claims applies equally to Womack.\nOakwood Acceptance Corp. v. Massengill, 162 N.C. App. 199, 211-12, 590 S.E.2d 412, 421-22 (2004) (some citations omitted); see also White v. Trew, _ N.C. _, _, 736 S.E.2d 166, 168 (2013); Mullis v. Sechrest, 347 N.C. 548, 554, 495 S.E.2d 721, 725 (1998). Plaintiffs\u2019 claims against Stancil in his official capacity are identical to Plaintiffs\u2019 claims against Chapel Hill. Oakwood, 162 N.C. App. at 211-12, 590 S.E.2d at 422. Our above analysis of Plaintiffs\u2019 claims against Chapel Hill applies equally to the claims against Stancil in his official capacity. Id.\nAffirmed in part, vacated and remanded in part.\nJudges GEER and DAVIS concur.",
        "type": "majority",
        "author": "McGEE, Judge."
      }
    ],
    "attorneys": [
      "Alan McSurely for Plaintiffs-Appellants.",
      "GranfUl Sumner & Hartzog LLP, by Dan M. Hartzog and Dan M. Hartzog, Jr., for Defendants-Appellees."
    ],
    "corrections": "",
    "head_matter": "KERRY BIGELOW & CLYDE CLARK, Plaintiffs-Appellants v. TOWN OF CHAPEL HILL & ROGER STANCIL, in his official capacity as MANAGER of the TOWN OF CHAPEL HILL and in his personal capacity, insofar as he was operating outside of his job description, Defendants-Appellees\nNo. COA12-1105\nFiled 7 May 2013\nPublic Officers and Employees \u2014 sanitation workers \u2014 wrongful discharge\nAlthough the trial court did not err in a wrongful discharge case by granting defendants\u2019 N.C.G.S. \u00a7 1A-1, Rule 12(c) motion for judgment on the pleadings for defendant town manager Stancil in his individual capacity, the remainder of the trial court\u2019s 29 May 2012 order was vacated and remanded. Plaintiff sanitation workers sufficiently pled a claim for wrongful discharge. '\nAppeal by Plaintiffs from order entered 29 May 2012 by Judge R. Allen Baddour, Jr., in Superior Court, Orange County. Heard in the Court of Appeals 12 March 2013.\nAlan McSurely for Plaintiffs-Appellants.\nGranfUl Sumner & Hartzog LLP, by Dan M. Hartzog and Dan M. Hartzog, Jr., for Defendants-Appellees."
  },
  "file_name": "0001-01",
  "first_page_order": 11,
  "last_page_order": 27
}
