IN THE COURT OF APPEALS OF NORTH CAROLINA
2021-NCCOA-527
No. COA 19-683
Filed 5 October 2021
Durham County, No. 18 CVS 4073
MICHAEL MOLE’, Plaintiff,
v.
CITY OF DURHAM, NORTH CAROLINA, a municipality, Defendant.
Appeal by Plaintiff from order entered 24 May 2019 by Judge John M. Dunlow
in Durham County Superior Court. Heard in the Court of Appeals 10 June 2021.
The McGuinness Law Firm, by J. Michael McGuinness, and Edelstein & Payne, by M. Travis Payne, for Plaintiff-Appellant.
Kennon Craver, PLLC, by Henry W. Sappenfield and Michele L. Livingstone, for Defendant-Appellee.
Essex Richards, P.A., by Norris A. Adams, II, for North Carolina Fraternal Order of Police, amicus curiae.
INMAN, Judge.
¶1 In his first experience negotiating the surrender of an armed and barricaded
suspect, without another negotiator backing him up, Durham Police Sergeant
Michael Mole’ might have given up when the suspect’s gun discharged at close range.
He didn’t, and two hours later he had persuaded the suspect to drop his weapon and
surrender. The suspect, other citizens, and law enforcement officers were safe. But MOLE’ V. CITY OF DURHAM
Opinion of the Court
Sergeant Mole’ was fired because he had secured the suspect’s surrender by
promising to allow him to smoke a marijuana cigarette once in custody, and he made
good on the promise immediately following the arrest.
¶2 Sergeant Mole’ sued the City of Durham, alleging that his employer violated
his rights under the North Carolina Constitution. The trial court dismissed his
complaint pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure.
¶3 Because the complaint alleges a colorable violation of Article I, Section 1 of the
North Carolina Constitution, which protects each person’s right to enjoy the fruits of
their own labor, we hold the trial court erred in dismissing that claim. We otherwise
affirm the trial court because binding precedent precludes a holding that Sergeant
Mole’ has a constitutionally protected interest in continued employment under
theories of due process or equal protection.
I. FACTUAL AND PROCEDURAL HISTORY
¶4 The complaint pleads the following facts:
¶5 Sergeant Mole’ began working for the Durham Police Department in May 2007.
He received hostage negotiation training in May 2014, but he did not negotiate a
barricaded subject or hostage situation until the events giving rise to this case.
¶6 On 28 June 2016, the Durham Police Department dispatched officers to an
apartment in Durham to serve an arrest warrant on Julius Smoot (“Smoot”). After
entering the apartment, officers discovered that Smoot had barricaded himself in an MOLE’ V. CITY OF DURHAM
upstairs bedroom. Smoot yelled that he had a gun and that he would use it on himself
in ten minutes unless he was allowed to see his wife and son. The officers retreated
and requested a hostage negotiator.
¶7 Sergeant Mole’ was the only hostage negotiator on duty at the time. He arrived
at the apartment five minutes before Smoot’s deadline and began negotiations with
the primary goals of extending the deadline and keeping Smoot alive. During these
negotiations, Smoot accidentally discharged his firearm.
¶8 Sergeant Mole’ continued to negotiate with Smoot for approximately two hours.
During this time, Smoot said he planned to smoke a “blunt,” a marijuana cigarette.
Sergeant Mole’, reluctant to allow an armed and barricaded subject to impair his
mental state, asked Smoot to refrain. Sergeant Mole’ promised Smoot that if he
disarmed and peacefully surrendered, he would be allowed to smoke the blunt.
¶9 Smoot then dropped his gun, handcuffed himself, and surrendered to Sergeant
Mole’ in the apartment. Still in handcuffs, Smoot asked for his pack of legal tobacco
cigarettes and lighter, which were on a nearby table, and Sergeant Mole’ handed
those items to him. Smoot then pulled a marijuana blunt from behind his ear, lit it
with the lighter, and smoked approximately half of it.
¶ 10 The Durham Police Department launched an internal investigation of
Sergeant Mole’s actions following Smoot’s peaceful surrender. On 24 October 2016,
approximately four months after the incident, Sergeant Mole’ was informed in writing MOLE’ V. CITY OF DURHAM
that a pre-disciplinary hearing would take place the next day, despite Durham’s
written policy requiring advance notice of at least three days. Following the hearing,
Sergeant Mole’s immediate supervisors recommended that he be reprimanded. But
Durham terminated him.
¶ 11 In November 2018 Sergeant Mole’ filed a complaint alleging Durham had
violated his state constitutional rights to due process, equal protection, and the fruits
of his labor under the North Carolina Constitution. The trial court entered an order
granting Durham’s motion to dismiss the complaint under Rule 12(b)(6) on 22 May
2019. Sergeant Mole’ appeals.
II. ANALYSIS
¶ 12 Sergeant Mole’ argues that the facts pled in his complaint support claims for
violations of his state constitutional rights to due process, equal protection, and the
fruits of his labor. Article I, Section 1 of the North Carolina Constitution, in a
provision unique to that document as compared to the federal constitution, protects
the people’s rights to enjoy the fruits of their own labor. This provision was recently
applied by our Supreme Court in Tully v. City of Wilmington, 370 N.C. 527, 810
S.E.2d 208 (2018). Following the Supreme Court’s reasoning in Tully, we hold that
Sergeant Mole’s complaint adequately pleads a claim for violation of Article I, Section
1. We are constrained by binding precedents to affirm the trial court’s dismissal of
his remaining constitutional claims. MOLE’ V. CITY OF DURHAM
A. Standard of Review
¶ 13 We review an order granting a 12(b)(6) motion to dismiss de novo to determine
whether the complaint states a claim under which relief can be granted. Wells Fargo
Bank, N.A. v. Corneal, 238 N.C. App. 192, 195, 767 S.E.2d 374, 377 (2014). We
liberally construe the complaint and take the material factual allegations as true. Id.
Legal conclusions, unlike factual allegations, are not presumed valid. Id.
B. Fruits of One’s Labor
¶ 14 Sergeant Mole’ argues that his termination violated his right to the fruits of
his labor guaranteed by Article I, Section 1 of the North Carolina Constitution. This
provision ensures each person the right to “life, liberty, the enjoyment of the fruits of
their own labor, and the pursuit of happiness.” N.C. Const. art. I, § 1 (emphasis
added). Unlike the due process and equal protection provisions of our state
constitution, which have been interpreted to provide the same protection as
provisions in the federal constitution, this guarantee has no analogous federal
constitutional clause. See infra Parts II.C (1) and (2).
¶ 15 The “fruits of their own labor” clause was added to our state constitution in
1868. It was adopted the same year the Fourteenth Amendment to the United States
Constitution was ratified, at a time when formerly enslaved persons were newly able
to work for their own benefit. See John V. Orth, The North Carolina State
Constitution with History and Commentary 38 (1995) (recognizing that the clause MOLE’ V. CITY OF DURHAM
was “an addition that may have been intended to strike an ideological blow at the
slave labor system”).
¶ 16 Our appellate courts did not consider the clause until the 20th century, when
it was applied to check the State’s professional licensing powers. See generally, e.g.,
State v. Harris, 216 N.C. 746, 6 S.E.2d 854 (1940) (dry cleaning); State v. Ballance,
229 N.C. 764, 51 S.E.2d 731 (1949) (photography); Roller v. Allen, 245 N.C. 516, 96
S.E.2d 851 (1957) (tile installation). These decisions recognized a person’s ability to
earn a livelihood as a protected constitutional right and struck down licensing
restrictions not rationally related to public health, safety, or welfare and not
reasonably necessary to promote a public good or prevent a public harm. Roller, 245
N.C. at 518, 96 S.E.2d at 854; Ballance, 229 N.C. at 769-70, 51 S.E.2d at 735.
¶ 17 In recent years, our Supreme Court has extended application of the fruits of
one’s labor clause beyond licensing restrictions to other state actions that interfere
with one’s right to earn a livelihood. King v. Town of Chapel Hill held that a town
ordinance capping towing fees was arbitrary and violated tow truck drivers’ rights to
enjoy the fruits of their labor. 367 N.C. 400, 408, 758 S.E.2d 364, 371 (2014). Tully
v. City of Wilmington held that a municipal police department violated a public
employee’s constitutional right to enjoy the fruits of his own labor when it failed to
follow its own promotion procedures. 370 N.C. at 539, 810 S.E.2d at 217.
¶ 18 Tully involved a Wilmington police officer who was denied a promotion after MOLE’ V. CITY OF DURHAM
he failed a mandatory examination that tested an officer’s knowledge of the law. 370
N.C. at 528-29, 810 S.E.2d at 211. His exam answers were correct based on the
current state of the law, but he failed the exam because the answer key was outdated.
Id. Written department policy laid out the promotion and examination procedures
and provided that candidates could appeal any portion of the selection process, so the
officer sought to appeal his test results. Id. at 529-30, 810 S.E.2d at 211. The City of
Wilmington refused to hear the officer’s appeal, determining the test results “were
not a grievable item” and that nothing could be done. Id. at 529, 810 S.E.2d at 211
(quotation marks omitted).
¶ 19 Our Supreme Court held that this denial of process violated the officer’s
constitutional rights under Article I, Section 1, reasoning the provision applies “when
a governmental entity acts in an arbitrary and capricious manner toward one of its
employees by failing to abide by promotional procedures that the employer itself put
in place.” Id. at 535-36, 810 S.E.2d at 215. It established the following requirements
to plead such a constitutional claim:
[T]o state a direct constitutional claim grounded in this unique right under the North Carolina Constitution, a public employee must show that no other state law remedy is available and plead facts establishing three elements: (1) a clear, established rule or policy existed regarding the employment promotional process that furthered a legitimate governmental interest; (2) the employer violated that policy; and (3) the plaintiff was injured as a result of that violation. MOLE’ V. CITY OF DURHAM
Id. at 536-37, 810 S.E.2d at 216.1
1. Tully and Article I, Section 1 Apply to Mole’s Discipline
¶ 20 In deciding whether Sergeant Mole’ has asserted a valid Article I, Section 1
claim, we must first resolve whether this state constitutional claim is limited to the
“employment promotional process” language used by our Supreme Court in Tully. A
strict reading of Tully would foreclose his claim. However, Tully detailed the
underlying constitutional injury in that case in terms broader than the promotional
process, and the logic employed in that decision applies with equal force to the
disciplinary action taken against Sergeant Mole’. Our understanding of Tully and its
rationale, combined with its instruction to “give our [state] Constitution a liberal
interpretation in favor of its citizens with respect to those provisions which were
designed to safeguard the liberty and security of the citizens in regard to both person
and property,” id. at 533, 810 S.E.2d at 214 (citation and quotation marks omitted),
leads us to hold that Article I, Section 1 applies to the disciplinary action taken
against Sergeant Mole’.
¶ 21 In declaring the existence of a valid claim under Article I, Section 1 in Tully,
the Supreme Court acknowledged “the right to pursue one’s profession free from
1 The Supreme Court declined to decide the form of remedy to which a successful Tully
plaintiff is entitled, leaving that to the trial court to determine based on the facts of the case. Id. at 538, 810 S.E.2d at 216. MOLE’ V. CITY OF DURHAM
unreasonable governmental action.” Id. at 535, 810 S.E.2d at 215. It did so in part
based on Presnell v. Pell, which recognized an allegedly unreasonable termination of
a public school teacher implicated “the right to engage in any of the common
occupations of life, unfettered by unreasonable restrictions imposed by actions of the
state or its agencies.” 298 N.C. 715, 724, 260 S.E.2d 611, 617 (1979) (citations and
quotation marks omitted) (quoted in Tully, 370 N.C. at 535, 810 S.E.2d at 214).2 Tully
quoted Presnell for the further proposition that “[t]he right of a citizen to live and
work where he will is offended when a state agency unfairly imposes some stigma or
disability that will itself foreclose the freedom to take advantage of employment
opportunities.” Tully, 370 N.C. at 535, 810 S.E.2d at 214-15 (quoting Presnell, 298
N.C. at 724, 260 S.E.2d at 617). It is undeniable that unreasonable employee
discipline—including termination—by a government employer implicates this same
right and raises the same concerns. See Presnell, 298 N.C. at 724, 260 S.E.2d at 617.
¶ 22 The Supreme Court in Tully ultimately announced that “Article I, Section 1
also applies when a governmental entity acts in an arbitrary and capricious manner
toward one of its employees by failing to abide by promotional procedures that the
employer itself put in place.” 370 N.C. at 535-36, 810 S.E.2d at 215. In reaching this
2 Presnell held that the discharged teacher was not denied due process protections,
but Tully was not resolved on due process grounds. Tully, 370 N.C. at 532 n.4, 810 S.E.2d at 213 n.4. The Supreme Court nevertheless relied on Presnell in its Article I, Section 1 analysis in Tully. Id. at 534-35, 810 S.E.2d at 214-15. We rely on Presnell to the same extent here. MOLE’ V. CITY OF DURHAM
conclusion, Tully relied on the United States Supreme Court’s reasoning in United
States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 98 L. Ed. 681 (1954), and lower
court decisions applying Accardi. According to Tully, Accardi and the cases applying
it “recognize[] the impropriety of government agencies ignoring their own regulations,
albeit in other contexts.” 370 N.C. at 536, 810 S.E.2d at 215 (citing Accardi, 347 U.S.
at 268, 98 L. Ed. at 687; then citing United States v. Heffner, 420 F.2d 809, 811-12
(4th Cir. 1969); and then citing Farlow v. N.C. State Bd. of Chiropractic Exam’rs, 76
N.C. App. 202, 208, 332 S.E.2d 696, 700 (1985)).
¶ 23 Decisions recognizing the impropriety of government agencies ignoring their
own rules in “other contexts,” though not directly cited in Tully,3 include the
termination of public employees in violation of internal disciplinary procedures. See
Service v. Dulles, 354 U.S. 363, 388-89, 1 L. Ed. 2d 1403, 1418 (1957) (applying
Accardi to reinstate a foreign service officer fired by the Secretary of State despite a
federal statute allowing at-will discharge because the agency violated its own
procedures); Vitarelli v. Seaton, 359 U.S. 535, 545-46, 3 L. Ed. 2d 1012, 1020-21 (1959)
(reinstating employment of a federal security guard under Accardi because the
3 Tully cites Accardi, Heffner, and Farlow by way of a “See, e.g.,” signal. 370 N.C. at 536, 810 S.E.2d at 215. Courts, practitioners, and legal academics use the signal “E.g.,” to show that the “[c]ited authority states the proposition; other authorities also state the proposition, but citation to them would not be helpful or is not necessary.” The Bluebook: A Uniform System of Citation R. 1.2(a) (Colum. L. Rev. Ass’n et al. eds., 21st ed. 2020). In other words, Tully acknowledges Accardi’s application beyond the other two decisions cited. MOLE’ V. CITY OF DURHAM
agency violated its own procedural rules at his termination hearing). These decisions
do not interpret North Carolina law. But just as Tully found other decisions applying
Accardi pertinent, we find the analysis in Dulles and Vitarelli instructive in our
review of Tully and, for the reasons above, hold that Tully’s articulation of Article I,
Section 1’s protections extends to the discipline of Sergeant Mole’.
2. Sufficiency of Mole’s Complaint Under Tully
¶ 24 Having held that the disciplinary procedure at issue here falls within the ambit
of Tully, we next examine whether the allegations in Sergeant Mole’s complaint
otherwise satisfy the three elements established by our Supreme Court in that
decision.4 The first two elements require Sergeant Mole’ to allege the existence and
violation of an internal employment policy that was “clear [and] established . . . [and]
that furthered a legitimate governmental interest.” Tully, 370 N.C. at 537, 810
S.E.2d at 216.
¶ 25 Sergeant Mole’s complaint alleges several policy violations of varying stripes,
namely: (1) the acting watch commander failed to deploy the hostage negotiation
team, the Special Enforcement Team, or stage fire and emergency medical services;
(2) the watch commander negotiated with Smoot without Sergeant Mole’s knowledge;
(3) an “after-action report/critical incident critique” was not completed; (4) Sergeant
4 The complaint asserts, and Durham did not contest before this Court, that Sergeant
Mole’ has no other remedy in state law. MOLE’ V. CITY OF DURHAM
Mole’ took Smoot into custody because the designated tactical personnel were never
deployed; (5) Sergeant Mole’ was not offered psychological services following the
incident; (6) other officers failed to secure prior written consent to conduct the search
that initiated the standoff with Smoot; (7) the incident should have been designated
a high-risk warrant service but was not; (8) Sergeant Mole’ was not provided
quarterly training and he did not meet annually with the department’s Special
Enforcement Team as required for hostage negotiators; and (9) Durham gave
Sergeant Mole’ only 24 hours’ notice of his pre-disciplinary conference instead of the
minimum 72 hours’ notice mandated by policy.
¶ 26 The first eight policy violations alleged above put Sergeant Mole’ into an
untenable position, but they do not state a claim under Tully. Tully protects public
employees from unreasonable violations of employment policies, not field operating or
training procedures that do not bear upon internal processes governing the employer-
employee relationship. See Tully, 370 N.C. at 537, 810 S.E.2d at 216 (“Tully’s
allegations show that the City’s actions injured him by denying him a fair opportunity
to proceed to the next stage of the competitive promotional process, thereby ‘unfairly
impos[ing] [a] stigma or disability that will itself foreclose the freedom to take
advantage of employment opportunities.’ ” (quoting Presnell, 298 N.C. at 724, 260
S.E.2d at 617) (alteration in original)).
¶ 27 But Sergeant Mole’s allegation that he was given improper and inadequate MOLE’ V. CITY OF DURHAM
notice of his pre-disciplinary hearing does fall within Article I, Section 1’s protections.
This shortened notice period violated Durham’s own employment disciplinary
procedures. Sergeant Mole’ further alleges that these pre-disciplinary procedures
were designed to further a legitimate government interest, namely that its employees
be treated fairly in the administration of discipline. Cf. id. (recognizing “the
legitimate governmental interest of providing a fair procedure that ensures qualified
candidates move to the next stage of the promotional process”). Sergeant Mole’ has
thus pled a redressable violation of his employer’s disciplinary procedures designed
to further a legitimate governmental interest, in satisfaction of the first two elements
from Tully.
¶ 28 Sergeant Mole’ has likewise satisfied the final element, injury, based on a
liberal construction of his complaint. Sergeant Mole’ specifically alleges that “[h]ad
[he] been afforded his opportunity . . . to prepare at a minimum of three days instead
of less than 24 hours, Sergeant Mole’ would have had reasonable notice and could
have better prepared and provided a more comprehensive response.” From there, he
asserts Durham “failed to comply with mandatory conditions precedent before
proceeding with dismissal . . . [and] did not comply with its own stated [disciplinary]
policies,” before alleging Durham’s “conduct including actions and omissions in its
treatment of Sergeant Mole’ w[as] arbitrary, capricious, irrational and predicated
upon selective enforcement of personnel and law enforcement policies and disparate MOLE’ V. CITY OF DURHAM
treatment in discipline and thereby deprived Sergeant Mole’ of the fruits of [his]
labors.” These allegations are similar to those held adequate to demonstrate a claim
in Tully, 370 N.C. at 536-37, 810 S.E.2d at 215-16, and we therefore hold Sergeant
Mole’ has sufficiently alleged he “was injured as a result of [Durham’s procedural]
violation[s].” Id. at 537, 810 S.E.2d at 216.5
¶ 29 We acknowledge North Carolina’s general policy of at-will employment, long
established in common law. See, e.g., Presnell, 298 N.C. at 723-24, 260 S.E.2d at 616
(“Nothing else appearing, an employment contract in North Carolina is terminable at
the will of either party.”). We do not hold that Durham could not terminate Sergeant
Mole’ based on the conduct at issue, or that Durham could not terminate Sergeant
Mole’ without cause. Given the stage of proceedings, “we express no opinion on the
ultimate viability of [Sergeant Mole’]s claim.” Id. at 537, 810 S.E.2d at 216. Like the
Supreme Court in Tully, “we [do] not speculate regarding whether [Sergeant Mole’]
would [not have been terminated] had [Durham] followed its own [disciplinary]
policy.” Id. at 537-38, 810 S.E.2d at 216. At this early stage of litigation, we do not
address whether Sergeant Mole’ must be reinstated or what relief must be afforded
to him should he prevail, as “[i]t will be a matter for the trial judge to craft the
5 Durham argues this procedural violation does not rise to a cognizable constitutional
injury based on Hilliard v. N.C. Dep’t of Corr., 173 N.C. App. 594, 620 S.E.2d 14 (2005). Hilliard was decided prior to Tully, did not involve a claim under Article I, Section 1, and is therefore not controlling on this issue. MOLE’ V. CITY OF DURHAM
necessary relief.” Id. at 538, 810 S.E.2d at 216 (quoting Corum v. Univ. of N.C., 330
N.C. 761, 784, 413 S.E.2d 276, 290-91 (1992)). We only hold that Durham must follow
its own disciplinary procedures—created to protect its legitimate governmental
interest in treating city employees fairly—in discharging Sergeant Mole’. If the
evidence shows that Durham failed to do so and that Sergeant Mole’ was harmed by
that failure, Article I, Section 1 of our Constitution provides a remedy.
C. Due Process and Equal Protection
¶ 30 We next address the two remaining constitutional claims dismissed by the trial
court. As explained below, we affirm the trial court based on precedent.
1. Due Process
¶ 31 The Fourteenth Amendment to the United States Constitution provides that
no state shall “deprive any person of life, liberty, or property, without due process of
the law.” U.S. Const. amend. XIV, § 1. The North Carolina Constitution provides
that “no person shall be taken, imprisoned, or disseized of his freehold, liberties, or
privileges, or outlawed, or exiled, or in any manner deprived of his life, liberty, or
property, but by the law of the land.” N.C. Const. art I, § 19. Our state’s “law of the
land clause is considered ‘synonymous’ with the Fourteenth Amendment to the
United States Constitution.” Woods v. City of Wilmington, 125 N.C. App. 226, 230,
480 S.E.2d 429, 432 (1997) (citation omitted). Decisions of the United States Supreme
Court as to federal due process are “highly persuasive, but not binding on the courts MOLE’ V. CITY OF DURHAM
of this State.” State v. Smith, 90 N.C. App. 161, 163, 368 S.E.2d 33, 35 (1988).
¶ 32 In order to succeed on a due process challenge, the plaintiff must first show
that he “has been deprived of a protected interest in ‘property’ or ‘liberty.’ ”
Dobrowolska v. Wall, 138 N.C. App. 1, 11, 530 S.E.2d 590, 598 (2000) (quoting Am.
Mfrs. Mut. Ins. v. Sullivan, 526 U.S. 40, 59, 143 L. Ed. 2d 130, 149 (1999)). The court
must decide whether the interest relates to a fundamental right “rooted in the
traditions and conscience of our people.” Reno v. Flores, 507 U.S. 292, 303, 123 L. Ed.
2d 1, 17 (1993) (citation and quotation marks omitted). “Property interests, of course,
are not created by the Constitution. Rather they are created and their dimensions
are defined by existing rules or understandings that stem from an independent source
such as state law—rules or understandings that secure certain benefits and that
support claims of entitlement to those benefits.” Bd. of Regents v. Roth, 408 U.S. 564,
577, 33 L. Ed. 2d 548, 561 (1972). Whether a person’s interest in continued
employment falls within the scope of constitutional protection is determined under
the law of the state where the person is employed. Bishop v. Wood, 426 U.S. 341, 344,
48 L. Ed. 2d 684, 690 (1976).
¶ 33 We are constrained by North Carolina Supreme Court precedent holding that
employees in this state generally do not have a property interest in continued
employment. Presnell, 298 N.C. at 723-24, 260 S.E.2d at 616. The Court in Presnell
held that this rule applies to both private and public employment. Id. (“The fact that MOLE’ V. CITY OF DURHAM
plaintiff was employed by a political subdivision of the state does not entitle her to
tenure . . . .”). The state may create a property interest in employment by statute,
ordinance, or express or implied contract. Id. at 723, 260 S.E.2d at 616. In the
absence of any of these, however, no such interest exists. Id. at 723-24, 260 S.E.2d at
616.
¶ 34 Sergeant Mole’ argues Durham’s internal personnel policies established an
“indirect or informal” property right in his continued employment. His complaint
identifies governing provisions such as Durham’s “Disciplinary and Grievance” policy
and its “practice and custom of commensurate discipline.” However, the complaint
does not identify any policies that have been incorporated into ordinance or statute
or included in Sergeant Mole’s employment contract.
¶ 35 We are bound by precedent holding that policies like those identified by
Sergeant Mole’ do not give rise to a protected property interest. In Wuchte v. McNeil,
this Court held that a Durham police officer, terminated without being afforded
procedures provided by the city’s personnel policies, could not state a claim for
wrongful termination without evidence that his employment contract, a statute, or
an ordinance provided that he could only be dismissed for good cause. 130 N.C. App.
738, 741-42, 505 S.E.2d 142, 145 (1998).6 We noted that “[a]n employee is presumed
6 Wuchte was decided two decades prior to Tully, strictly on due process grounds. 130 N.C. App. at 744, 505 S.E.2d at 146-47. MOLE’ V. CITY OF DURHAM
to be an employee-at-will absent a definite term of employment or a condition that
the employee can only be fired only ‘for cause.’ ” Id. at 740, 505 S.E.2d at 144 (citation
omitted). In Wuchte, as in this case, the plaintiff relied on personnel policies that had
not been enacted as an ordinance, and we held that unilaterally promulgated
personnel memoranda did not establish a protected property interest. Id. at 742, 505
S.E.2d at 145.7
¶ 36 By contrast, in Howell v. Town of Carolina Beach, this Court held that a
manual adopted by the town as an ordinance granted employees a “reasonable
expectation of employment and a property interest within the meaning of the due
process clause.” 106 N.C. App. 410, 417, 417 S.E.2d 277, 281 (1992). Sergeant Mole’s
complaint does not allege that Durham has codified its personnel policies in an
ordinance.
¶ 37 As we noted above, whether an employee has a constitutionally protected
interest under the due process clause is not determined by reference to the federal
constitution but depends on state law. Bishop, 426 U.S. at 344, 48 L. Ed. 2d at 690.
7 This Court has previously questioned the rationale of this black-letter law. See, e.g., Walker v. Westinghouse Elec. Corp., 77 N.C. App. 253, 259, 335 S.E.2d 79, 83-84 (1985) (“[T]here are strong equitable and social policy reasons militating against allowing employers to promulgate for their employees potentially misleading personnel manuals while reserving the right to deviate from them at their own caprice. Nevertheless, the law of North Carolina is clear that unilaterally promulgated employment manuals or policies do not become part of the employment contract unless expressly included in it.” (citations omitted)). MOLE’ V. CITY OF DURHAM
Federal courts applying North Carolina law have recognized that personnel rules and
regulations merely supply internal administrative guidelines and do not grant a
property interest subject to due process protections unless enacted as an ordinance.
Pittman v. Wilson Cty., 839 F.2d 225, 229 (4th Cir. 1988); Dunn v. Town of Emerald
Isle, 722 F.Supp. 1309, 1311 (E.D.N.C. 1989).
¶ 38 Sergeant Mole’ notes that he was granted “permanent employee” status after
a probationary period, and his complaint alleges this status grants him the “right to
be afforded due process in the disciplinary system.” But without contract provisions
setting a term of employment or procedures by which the employment might be
terminated, “permanent” employment is presumed to be terminable at the will of
either party and does not alone confer a property or liberty interest in continued
employment. Nantz v. Emp’t Sec. Comm’n, 290 N.C. 473, 477, 226 S.E.2d 340, 343
(1976). But see Presnell, 298 N.C. at 724, 260 S.E.2d at 617 (“The liberty interest
here implicated—the freedom to seek further employment—was offended not by her
dismissal alone, but rather by her dismissal upon alleged unsupported charges which,
left unrefuted, might wrongfully injure her future placement possibilities.”).
¶ 39 Sergeant Mole’ also argues that his dismissal was arbitrary and capricious,
giving rise to a claim for violation of his due process rights “to continued employment
when Defendant arbitrarily terminated [him].” But our Supreme Court has held that
an at-will employee has no right to continued employment, and thus arbitrary MOLE’ V. CITY OF DURHAM
conduct by an at-will employer does not state a cognizable violation of the due process
protections of the North Carolina Constitution. See Tully, 370 N.C. at 538-39, 810
S.E.2d at 216-17 (holding Tully’s allegations that the City of Wilmington “arbitrarily
and irrationally deprived [him]” of an alleged “property interest in his employment
with the City” failed to state a valid due process claim under the North Carolina
Constitution because, per Presnell, at-will public employees have no cognizable
property interest in continued employment).
¶ 40 To be sure, this Court has recognized violations of state and federal substantive
due process protections without requiring the plaintiff allege or demonstrate the
deprivation of a recognized property or liberty interest where the State’s conduct was
“so egregious that it shocks the conscience or offends a sense of justice.” Toomer v.
Garrett 155 N.C. App. 462, 470, 574 S.E.2d 76, 84 (2002). But that case, unlike Tully,
did not involve an employment decision. It instead concerned a state agency’s public
disclosure of an employee’s personnel file, including social security number, medical
diagnoses, and personal financial data, without any rational relationship to any
governmental interest. 155 N.C. App. at 472, 574 S.E.2d at 85.8 In contrast to
8 Sergeant Mole’ cites a United States Supreme Court decision holding that Oklahoma
state employees’ federal substantive due process protections were violated by their employer’s arbitrary and capricious conduct, without finding that the employees had a property or liberty interest in the employment. Wieman v. Updegraf held that a statute requiring state employees to take a loyalty oath asserting they were not affiliated with MOLE’ V. CITY OF DURHAM
Toomer, a holding here that Sergeant Mole’s allegedly arbitrary and capricious
termination violated his substantive due process rights, without a cognizable
property interest in continued employment, would effectively hold that he could not
be terminated except for cause. As discussed above, North Carolina employees do not
enjoy that substantive due process protection unless it is explicitly incorporated into
their employment contract or promulgated by statute or ordinance.
2. Equal Protection
¶ 41 Sergeant Mole’ also asserts that Durham subjected him to disparate treatment
as compared to similarly situated employees. His complaint cites examples of
misconduct by other Durham police officers that he alleges were more egregious than
the actions that led to his termination.
¶ 42 Both our federal and state constitutions guarantee that individuals receive
“the equal protection of the laws.” N.C. Const. Art. I, § 19; U.S. Const. amend. XIV,
§ 1. The equal protection clause of the United States Constitution’s Fourteenth
communist organizations was unconstitutional. 344 U.S. 183, 191, 97 L. Ed. 216, 222 (1952). However, Weiman did not specifically address, and lower federal court decisions have not held, that arbitrary termination from at-will employment gives rise to a substantive due process claim. See, e.g., Darr v. Town of Telluride, Colo, 495 F.3d 1243, 1258 (10th Cir. 2007) (observing Wieman did not address at-will employment and holding a town could terminate a marshal, even for allegedly arbitrary and capricious reasons, because “[t]he substantive- due-process clause does not forbid a public employer from terminating its at-will employees without cause”); Singleton v. Cecil, 176 F.3d 419, 423-24 (8th Cir. 1999) (“[T]he defendants’ alleged arbitrary and capricious firing of Officer Singleton, an at-will employee[,] . . . did not violate his substantive due process rights.”). MOLE’ V. CITY OF DURHAM
Amendment “has been expressly incorporated in Art. I, § 19 of the Constitution of
North Carolina,” S.S. Kresge Co. v. Davis, 277 N.C. 654, 660, 178 S.E.2d 382, 385
(1971), and the same analysis applies to both. Toomer, 155 N.C. App. at 476, 574
S.E.2d at 88; see also Richardson v. N.C. Dep’t of Corr., 345 N.C. 128, 134, 478 S.E.2d
501, 505 (1996) (applying “the same test as federal courts” to determine whether
limiting working prisoners’ remedy to workers’ compensation violates their right to
equal protection).
¶ 43 A typical equal protection claim alleges that the plaintiff was treated
differently by legislation or a state actor due to their membership in a suspect class:
race, color, religion, national origin, etc. See Engquist v. Or. Dep’t of Agric., 553 U.S.
591, 601, 170 L. Ed. 2d 975, 985 (2008). Where the treatment varies based upon a
suspect class or impacts a fundamental right, we apply strict scrutiny and determine
whether the state action is necessary to promote a compelling government interest.
State ex. rel. Utils. Comm’n v. Carolina Util. Customers Ass’n, 336 N.C. 657, 681, 446
S.E.2d 332, 346 (1994). The United States Supreme Court and, in turn, North
Carolina courts, have also recognized the existence of “class of one” equal protection
claims in which plaintiffs allege they were intentionally treated differently from
others similarly situated. Village of Willowbrook v. Olech, 528 U.S. 562, 564, 145 L.
Ed. 2d 1060, 1063 (2000); In re Application of Ellis, 277 N.C. 419, 424, 178 S.E.2d 77,
80 (1970) (recognizing “the constitutional limitation forbidding arbitrary and unduly MOLE’ V. CITY OF DURHAM
discriminatory interference with the right of property owners”). When the plaintiff
is not a member of a suspect class and does not assert wrongful termination in
violation of a fundamental right,9 “it is necessary to show only that the classification
created by the [government action] bears a rational relationship to some legitimate
state interest.” Richardson, 345 N.C. at 134, 478 S.E.2d at 505 (citation omitted).
¶ 44 Sergeant Mole’ asserts a class-of-one claim by arguing that he was situated
similarly to other Durham police officers who violated department policies and
received significantly less severe discipline. The United States Supreme Court has
recognized this type of claim in relation to real property rights. In Olech the Court
held the complaint, alleging that the defendant arbitrarily required the plaintiff to
cede a larger easement than her neighbors in order to connect to the municipal water
supply, was sufficient to state a class-of-one claim. 528 U.S. at 565, 145 L. Ed. 2d at
1063-64. Previous Supreme Court decisions also recognized this type of claim without
explicitly identifying the claims as “class-of-one.” See Sioux City Bridge Co. v. Dakota
Cty., 260 U.S. 441, 446-47, 67 L. Ed. 340, 343 (1923) (holding that assessing property
at 100% of its true value when all other property in the county was evaluated at 55%
violated equal protection); Allegheny Pittsburgh Coal Co. v. Cty. Comm’n of Webster
9 Fundamental rights recognized by the United States Supreme Court include the
right to vote, the right of interstate travel, rights guaranteed by the first amendment such as freedom of expression and religion, and the right to procreate. Carolina Utility Customers Ass’n, 336 N.C. at 681 n.6, 446 S.E.2d at 346 n.6 (1994). MOLE’ V. CITY OF DURHAM
Cty., 488 U.S. 336, 341-43, 102 L. Ed. 2d 688, 695-96 (1989) (holding assessment
methodology that produced “dramatic differences in valuation” between petitioners’
property and comparable surrounding land violated equal protection).
¶ 45 But the United States Supreme Court has held that class-of-one claims cannot
be stated in the employment context. In Engquist, the plaintiff asserted a class-of-
one equal protection claim against her employer, alleging that she was terminated
for arbitrary, vindictive, and malicious reasons. 553 U.S. at 595, 170 L. Ed. 2d at
982. A coworker who had personal issues with the plaintiff formed an alliance with
an assistant director who had assured a client that the plaintiff would be “gotten rid
of.” Id. at 594, 170 L. Ed. 2d at 981. The plaintiff was then passed over for a
promotion in favor of a less-qualified coworker and told that she could only stay with
the department if she accepted a demotion. Id. at 595, 170 L. Ed. 2d at 981.
¶ 46 While the Court recognized that the equal protection clause’s protections apply
to administrative as well as legislative acts and that states do not escape its
requirements in their role as employers, it distinguished between the government
taking action as a regulator and the government taking action “as proprietor, to
manage its internal operation.” Id. at 598, 170 L. Ed. 2d at 983 (cleaned up). The
Engquist Court noted that some forms of state action, including employment
decisions, “involve discretionary decisionmaking based on a vast array of subjective,
individualized assessments.” Id. at 603, 170 L. Ed. 2d at 987. The Court reasoned MOLE’ V. CITY OF DURHAM
that as opposed to the regulation of third parties, treating similarly situated
employees differently is “par for the course.” Id. at 604, 170 L. Ed. 2d at 988. The
Court characterized class-of-one claims in the public employment context as “contrary
to the concept of at-will employment,” id. at 606, 170 L. Ed. 2d at 989, and held that
“the class-of-one theory of equal protection has no application in the public
employment context[.]” Id. at 607, 170 L. Ed. 2d at 989.
¶ 47 We must again consider whether the analogous clause in the North Carolina
Constitution is more protective and extends the guarantee of equal protection in the
public employment context. As with due process, the fact that the Fourteenth
Amendment does not provide a cause of action for Sergeant Mole’ does not necessarily
foreclose the possibility that our state Constitution could yield a remedy: the United
States Constitution is the floor of constitutional protections in North Carolina, not
the ceiling. See State v. Carter, 322 N.C. 709, 713, 370 S.E.2d 553, 555 (1988). The
North Carolina Constitution is to be liberally construed, especially the provisions
safeguarding individual liberty and property rights. Tully, 370 N.C. at 533, 810
S.E.2d at 214.
¶ 48 However, precedent precludes us from unfettered liberal analysis. This Court
has clearly and explicitly held that the equal protection rights guaranteed by the
North Carolina Constitution are the same as those in the United States Constitution,
and the analysis under each is the same. Toomer, 155 N.C. App. at 476, 574 S.E.2d MOLE’ V. CITY OF DURHAM
at 88. We have searched without success for decisions holding otherwise. Our review
reveals no decision in North Carolina recognizing class-of-one claims in the
employment context. We are bound by our existing precedent. Johnson v. State, 224
N.C. App. 282, 297, 735 S.E.2d 859, 871 (2012). But the final arbiter of the North
Carolina Constitution is the North Carolina Supreme Court. Lea Co. v. N.C. Bd. of
Transp., 308 N.C. 603, 610, 304 S.E.2d 164, 170 (1983). Because our constitution is
to be liberally construed, we urge the Supreme Court to address this issue.10
III. CONCLUSION
¶ 49 For the reasons explained above, we hold that the trial court erred in
dismissing Sergeant Mole’s claim for violation of his right to the fruits of his labor
and reverse that portion of the trial court’s order. We affirm the trial court’s dismissal
of Sergeant Mole’s remaining claims. The matter is remanded to the trial court for
further proceedings not inconsistent with this opinion.
AFFIRMED IN PART, REVERSED IN PART AND REMANDED.
JUDGES ZACHARY AND CARPENTER concur.
10 In dissent, Justice Stevens characterized the Engquist majority’s exclusion of public
employees as applying a “meat-axe” to resolve an issue better addressed with a scalpel. 553 U.S. at 610, 170 L. Ed. 2d at 991. It is not necessary that protections provided by our state constitution exclude the same broad category of claims.