Motion for Directed Verdict under Rule 50. Plaintiff s 1983, NCGS 160A-169 and Violation of Public Policy claims do not lie against the

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1 STATE OF NORTH CAROLINA COUNTY OF JACKSON CURTIS LAMBERT, Plaintiff, v. TOWN OF SYLVA, Defendants. IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION FILE NO. 15 CVS 123 DEFENDANT TOWN OF SYLVA S MOTION FOR DIRECTED VERDICT COMES NOW the Defendant Town of Sylva, through the undersigned counsel, and moves for Directed Verdict at the close of the Plaintiff s evidence, pursuant to Rule 50, Rule 12(b)6 and Rule 12(b)7 of the North Carolina Rules of Civil Procedure and in reliance of the decisions of Glenn-Robinson v. Acker, 140 NC App. 606, 538 S.E.2d 601 (2000) cert. denied. Venable v. Vernon, 162 N.C. App. 702, 592 S.E.2d 256 (2004) and Kurtzman v. Applied Analytical Industries, Inc. 347 N.C. at 331, 493 S.E.2d 420 (1997) and in support thereof shows unto the Court the following: Motion for Directed Verdict under Rule 50 The Doctrine of Respondeat Superior does not apply to the claims of the Plaintiff. Plaintiff s 1983, NCGS 160A-169 and Violation of Public Policy claims do not lie against the Defendant Town of Sylva. In order for the Defendant Town to be liable for such claims, the Town itself must have a custom or policy that is in violation of law. Glenn-Robinson v. Acker, 140 NC App. 606 II. Plaintiff's claims against the City We now turn to plaintiff's claims against the City. In her complaint, plaintiff alleged the City "by way of its pattern, practice, custom or usage condoned or was deliberately indifferent to officers' violations of the Fourth Amendment and Fourteenth Amendment" and that the City "violated the rights guaranteed to the plaintiff under the N.C. Constitution, Art. I, [ ] 14, 19, 20, 21, 35 and 36." The trial court granted summary judgment in favor of the City on both claims. While the City's motion for summary judgment was based on the defense of res judicata, a defense rendered inapposite in light of our disposition with regard to plaintiff's claims against Acker, we note that "[i]f the granting of summary judgment can be sustained on any grounds, it should be affirmed on appeal." Shore v. Brown, 324 N.C. 427, 428, 378 S.E.2d 778, 779 (1989). A. Section 1983claims Preliminarily, we note a municipality cannot be held liable under section 1983 unless action pursuant to official municipal policy [or custom] caused a constitutional tort," Burton, 118 N.C. App. at 685, 457 S.E.2d at 334, summary judgment was not proper for the City on the basis that no constitutional violation occurred as we have reinstated plaintiff's claims against Acker. Thus, [a]ssuming arguendo [plaintiff] suffered a deprivation of her federal rights, it is by now well settled that a municipality is only 1

2 liable under section 1983 if it causes such a deprivation through an official policy or custom. Municipal policy may be found in written ordinances and regulations, in certain affirmative decisions of individual policymaking officials, or in certain omissions on the part of policymaking officials that manifest deliberate indifference to the rights of citizens. Outside of such formal decisionmaking channels, a municipal custom may arise if a practice is so "persistent and widespread" and "so permanent and well settled as to constitute a 'custom or usage' with the force of law." Carter, 164 F.3d at 218 (citations omitted). The municipality must have had, at the time of the incident, actual or constructive knowledge that the practice had become customary. See Spell v. McDaniel, 824 F.2d 1380, 1391 (4th Cir. 1987). Where a plaintiff claims the municipality has caused an employee to inflict an injury, "rigorous standards of culpability and causation must be applied to ensure that the municipality is not held liable solely for the actions of its employee." Board of Comm'rs of Bryan City v. Brown, 520 U.S. 397, 405, 137 L. Ed. 2d 626, 640 (1997); see also Spell, 824 F.2d at 1388 (plaintiff must prove an "affirmative link" between the custom and the violation). Further, "a plaintiff cannot rely upon scattershot accusations of unrelated constitutional violations to prove either that a municipality was indifferent to the risk of her specific injury or that it was the moving force behind her deprivation." Carter, 164 F.3d at 218; see also Canton v. Harris, 489 U.S. 378, 391, 103 L. Ed. 2d 412, 428 (1989) ("[T]he identified deficiency... must be closely related to the ultimate injury."). From Glenn-Robinson v. Acker, 140 NC App. 606, 538 S.E.2d 601 (2000) cert. denied. Hawkins v. State, 117 NC App. 615, 453 S.E.2d 233 (1995 Plaintiff also argues that defendants are "persons" here and liable because their actions establish a "governmental custom" of Constitutional[117 N.C.App. 625] and statutory violations. We are not persuaded. Plaintiff relies on language from cases dealing with municipal liability. Municipalities do not enjoy the same protections from liability that states enjoy. "[U]nlike various government officials, municipalities Page 239 do not enjoy immunity from suit--either absolute or qualified--under In short, a municipality can be sued under 1983, but it cannot be held liable unless a municipal policy or custom caused the constitutional injury." Leatherman v. Tarrant County Etc., 507 U.S. 163, ----, 113 S.Ct , 122 L.Ed.2d 517, 523 (1993). Accordingly, plaintiff here cannot contend that defendants in their official capacities are liable for alleged Constitutional violations by arguing that defendants' actions were pursuant to a "governmental custom." From Hawkins v. State, 117 NC App. 615, 453 S.E.2d 233 (1995) The pleadings themselves do not allege that the Municipality infringed upon the Plaintiffs rights, nor did Plaintiffs present any suggestion of evidence that support the required element that the Town had a policy or custom that violated 1983 or NCGS 160A-169 or otherwise suggested that a Town employee could not run for political office. Rather, all evidence 2

3 presented by the Plaintiff has been that a town official, in his or her official capacity, made the decision to discharge the Plaintiff, with the suggestion that it is was politically motivated because the Plaintiff had filed to run for Jackson County Sheriff. There is no evidence of any kind presented of a Town Board Ordinance, Resolution, Policy or custom that prevents a Town Employee from running for political office. To the contrary, the only evidence presented on this issue is that the Town of Sylva does not have any such policy in that another Town of Sylva employee, Sylva Police Officer Doug Farmer, also ran for same elected office of Jackson County Sheriff in the same election. Failure to state a claim upon relief can be granted under Rule 12(b)6. In order to state a claim upon which relief can be granted, the Plaintiff must allege that the Town "by way of its pattern, practice, custom or usage condoned or was deliberately indifferent to officers' violations of the Fourth Amendment and Fourteenth Amendment" and that the City "violated the rights guaranteed to the plaintiff under the N.C. Constitution, Art. I, [ ] 14, 19, 20, 21, 35 and 36." Plaintiffs complaint makes no such allegation and fails from the onset. Failure to join a necessary party under 12(b)7. As set forth above, the evidence presented by the Plaintiff is wholly directed toward the decisions made by Town Officials, not the municipality. Those appointed officials are not named as parties to this proceeding. They cannot subsequently be joined nor can subsequent action be brought against them pursuant to the doctrines of Res Judicata and Collateral Estoppel. Speculative Evidence fails to rebut the Employment at Will presumption In North Carolina In the absent of an employment contract for a definite period, both employer and employee are generally free to terminate their association at any time and without any reason. Venable v. Vernon, 162 N.C. App. 702, 705 (2004) citing Salt v. Applied Analytical, Inc. 104 N.C. App. 652, 655 (1991). Under the Employment at Will Doctrine, the relationship is 3

4 presumed to be terminable at the will of either party without regard to the quality of the performance of either party. Kurtzman, 347 N.C. at 331, 493 S.E.2d at 422. Although evidence of retaliation in a case may often be completely circumstantial, the causal nexus between protected activity and retaliatory discharge must be something more than speculation. Venable v. Vernon, 162 N.C. App. 702, 705 (2004) citing Lenzer v. Flaherty, 106 N.C. App. 496, 510 (1992). A cause of action must be something more than a guess. A resort to a choice of possibilities is guesswork not decision. Venable at 705, citing Kinlaw v. Willetts, 259 N.C. 597, (1963). STATEMENT OF THE FACTS Plaintiff was employed as a patrol officer with the Sylva Police Department by the Town of Sylva on three (3) separate occasions: September, 1995 to May, 1998; August 2007 to February, 2011 and January, 2013 to March, [Lambert Depo. Pages 13-17]. Plaintiff and Sylva Police Chief Davis Woodard have known each other since at least high school [Lambert Depo. Page 6, Line 3], were good friends [Lambert Depo. Page 35, Line 8], and worked together at the Sylva Police Department, patrol division, during Plaintiff s first two periods of employment at the Town. [Lambert Depo. Page 35, Line 10]. Plaintiff unilaterally terminated his first employment with the Sylva Police Department in May, 1998, because his mom did not like him being in law enforcement, and he accepted a job offered by his mother at roughly the same pay. [Lambert Depo. Page 14, Lines 15-24]. Plaintiff unilaterally terminated his second term of employment with the Sylva Police Department in February, 2011, to accept a similar patrol officer position with the Jackson County Sheriff s Department for more pay and better benefits. [Lambert Depo. Page 19, Lines 7-8]. Plaintiff unilaterally terminated his employment with the Jackson County Sheriff s Department in January, 2013, to return to his prior patrol officer position with the Sylva Police Department. [Lambert Depo. Page 20, Line 10]. Among the reasons for Plaintiff terminating his employment at the Jackson County Sheriff s Department was that he intended to run against incumbent Sheriff Jimmy Ashe. [Lambert Depo. Page 31, Lines 20-24]. In January, 2013, Plaintiff Lambert called Chief Woodard and asked to return to the Sylva Police Department [Lambert Depo. Page 23, Line 19]. Plaintiff was re-hired by Chief Woodard without application [Lambert Depo. Page 29, Line 25] or interview. [Lambert Depo. Page 24, Line 2]. Plaintiff previously filed for and campaigned for the office of Jackson County Sheriff in [Lambert Depo Page 30 line 20]. Sylva Police Chief Davis Woodard was aware that Plaintiff had previously run for Sheriff in [Lambert Depo Page 36 line 5]. Chief Woodard was likewise aware before he re-hired Plaintiff in 2013 that Plaintiff intended to run for Sheriff in the 2014 election. [Lambert Depo. Page 36, Lines 5-10]. 4

5 In July, 2013, Plaintiff announced his intent to run for the office of Jackson County Sheriff. [Lambert Depo. Page 59, line 24]. Sylva Police Chief Davis Woodard and Town Manager, Paige Dowling were the individuals employed by the Town of Sylva who made the decision to hire Plaintiff in January [Lambert Depo. Page 20, lines 21-24]. Chief Woodard and Manager Paige Dowling were likewise the same Town of Sylva Department heads that made the decision to terminate Plaintiff s employment in March, [Lambert Depo. Page 89, Lines 1-21]. Plaintiff speculates that he was terminated by the Sylva Police Department as a result of his decision to run for Jackson County Sheriff. [Lambert Depo. Page 81, Line 10 through Page 82, Line 11]. Another Town of Sylva Police officer, Sergeant Doug Farmer, also ran for Sheriff in [Lambert Depo. Page 36, Line 16]. Sergeant Farmer was not terminated and remains employed by the Sylva Police Department. [Lambert Depo. Page 60, Line 22]. Another Town of Sylva officer, Daniel Peoples, who acted as Sergeant Farmer s campaign chairman, was likewise not terminated. [Lambert Depo. Page 61, Lines 2-6]. During his four different employments as a patrol officer (three with the Defendant Town and one with the County), encompassing a total of ten years of active law enforcement service over a 19 year span, Plaintiff was never promoted and never received a commendation [Lambert Depo. Page 29, lines 10-16]. Sometime in the Fall, 2013, Plaintiff spent time while on duty watching youth football practice and was instructed by Sergeant Harris to cease such activity. [Lambert Depo. Page 44, line 10 to Page 45, line 17]. In September, 2013, Chief Woodard called Plaintiff to a job performance meeting and advised Plaintiff that his job performance was poor, that his job performance needed to improve, and that Plaintiff was the Police Department s weakest link. [Lambert Depo. Page 38, Line 15-16]. In the same job performance meeting, Chief Woodard instructed Plaintiff s immediate supervisor, Sergeant Harris, not to let his Chief Woodard s and Plaintiff s friendship interfere with Sergeant Harris job to supervise the Plaintiff. [Lambert Depo. Page 46, line 17]. Two months later, in November, 2013 other officers on duty with Plaintiff were upset because Plaintiff would not get out of his patrol car and assist at a license checkpoint. [Lambert Depo. Pages 50-57, and specifically, Page 55, Line 5]. Plaintiff Lambert was aware that his job was in jeopardy prior to his failure to assist other officers at the November license checkpoint. [Lambert Depo. Pages 57, Line 10]. Despite the reprimands and knowledge that his position with the Sylva Police Department was in jeopardy, Plaintiff Lambert admits that he spent an hour to an hour and half watching a movie in a local convenience store while on a duty and in the presence of a Town of Sylva Board Member, Danny Allen. [Lambert Depo. Pages 72-73]. 5

6 Sylva Board member, Danny Allen, advised Town Manager Paige Dowling that the time spent loitering within the store was closer to 3 hours, and that Mr. Lambert left his patrol car running the duration of the time. [Dowling Depo. Page 21, Lines 13-17; Dowling Affidavit attached hereto as Exhibit 1 ]. An internal investigation conducted by Chief Woodard and Assistant Chief Tammy Hooper confirmed the complaints voiced by Board Member Allen. [Woodard Depo. Page 58, Lines 1-3; Hooper Depo. Page 12, Line 16-21]. Plaintiff s immediate supervisor, Sergeant Caleb Harris admitted that the three hours spent loitering in the store was not the first time that Plaintiff had spent an unreasonable amount of time in the store. [Hooper Affidavit attached hereto as Exhibit 2 and Woodard Affidavit attached hereto as Exhibit 3]. Plaintiff Lambert did not discuss politics with Chief Woodard and is not aware of Chief Woodard s political viewpoints, nor is he even aware of his political leanings. [Lambert Depo. Page 78, line 21 to Page 79, Line 14]. Plaintiff Lambert admits that he has nothing other than speculation that he was fired for running for Jackson County Sheriff. [Lambert Depo. Page 81, Line 10 through Page 82, Line 11]. Plaintiffs Complaint alleges a single incident relevant to his speculation that he was fired for running for Sheriff: In February, 2014, Plaintiff parked his vehicle, replete with campaign stickers, in the front of the Sylva Police Department to attend a police department meeting in disregard to Chief Woodard s instructions that police officers not park their personal vehicles on Main St. while attending to official duties. [Complaint Para. 44]. Chief Woodard teased Plaintiff about parking in front of the police department for the purpose of displaying his candidacy and jokingly taped a piece of brown cardboard over Plaintiff s bumper sticker. [Lambert Depo. Page 76-78; Woodard Depo. Page 71, Line 4; Woodard affidavit attached hereto as Exhibit 3]. Plaintiff stated in his deposition that somebody left a political party affiliated bumper sticker on the laptop at his work station, but he doesn t know who left it there. [Lambert Depo. Page 79, Line 24]. It was not uncommon for the officers, including Chief Woodard, to joke around and give each other a hard time in fun. [Lambert Depo. Page 78, Lines 2-6]. Plaintiff has no other witnesses or evidence of any kind that supports his contention or speculation that he was terminated as a result of his candidacy for Sheriff. [Lambert Depo. Page 81, Line 7 to Page 82, Line 11]. The Town of Sylva s Personnel Policy that is provided to each employee on the date of hire specifically provides that its employees are At Will Employees. [Town of Sylva Personnel Policy, Page 5, Section 2 attached hereto as Exhibit 4]. Chief Woodard and Assistant Chief Hooper did not contribute any money to any candidate running for Sheriff nor did they support any particular candidate over another. [Woodard Depo. Page 102, Lines 10-16; Hooper Depo. Page 25, Line 18 to Page 27, Line 22]. 6

7 Chief Woodard made the decision to terminate Plaintiff because he was lazy, did not meet up to the Chief s expecations, had no self-initiative, was the weakest link in the department and was a cancer to the other officers, especially the younger ones. [Woodard Depo. Page 95, Line 25 to Page 96, Line 9]. The depositions and affidavits of Manager Dowling, Chief Woodard and Assistant Chief Hooper confirm that Plaintiff s employment was terminated because his job performance, initiative and work ethic were inadequate and remained inadequate after repeated efforts to correct the same. Plaintiff s candidacy for Sheriff was irrelevant to the facts that lead to the Plaintiff s termination.. [Depositions and Affidavits of Dowling, Woodard and Hooper]. ARGUMENT I. Plaintiff was an at will employee, subject to the Employment at Will Doctrine, and his employment was terminable at the will of the Town. Just as Plaintiff had the legal ability to elect to terminate his employment with the Sylva Police Department in May, 1998 and again in February, 2011, the Employment at Will Doctrine affords the Town of Sylva the same legal right to elect to terminate its employment relationship with Plaintiff. Under the Employment at Will Doctrine, the relationship is presumed to be terminable at the will of either party without regard to the quality of the performance of either party. Kurtzman, 347 N.C. at 331, 493 S.E.2d at 422. There is no legal requirement that the termination be for Cause, nor is there any legal obligation on behalf of the Town of Sylva to follow any policies or procedures contained within in the Town of Sylva s or the Sylva Police Department s Personnel Policies. The Town s personnel policies serve as a guideline for its administration to follow. There is no legal claim available to an Employee at Will for violation of the Town s personnel policy; the only claim available under North Carolina law to an Employee at Will is a violation of public policy. Plaintiff has not provided any facts that rebut the Employment at Will Doctrine. The only incident alleged involved the prank of covering over a bumper sticker after Plaintiff parked his vehicle in the front of the police station in contradiction to Chief Woodard s instructions to the contrary. The same does not give reasonable grounds for speculation. Notwithstanding, North Carolina caselaw holds that mere speculation is not sufficient to survive summary judgment. Although evidence of retaliation in a case may often be completely circumstantial, the causal nexus between protected activity and retaliatory discharge must be something more than speculation. Venable v. Vernon, 162 N.C. App. 702, 705 (2004) citing Lenzer v. Flaherty, 106 N.C. App. 496, 510 (1992). The plaintiff in Venable was a law enforcement officer terminated by the newly elected Sheriff. Venable filed a wrongful termination claim alleging that he was fired because he supported another candidate for Sheriff. The Sheriff maintained that plaintiff s dismissal was not politically motivated and instead was based upon plaintiff s poor job performance. While the facts in Venable provide stronger speculation that Plaintiff was fired for political reasons than in the case at hand, the Venable court held that such speculation was not sufficient to survive summary judgment. A cause of action must be something more than a 7

8 guess. A resort to a choice of possibilities is guesswork not decision. Venable at 705, citing Kinlaw v. Willetts, 259 N.C. 597, (1963). Where causation is rooted in mere speculation and surmise, it is insufficient to present a question of causation to the jury. Venables at 705, citing Ellington v. Hester, 127 N.C. App. 172, 175 (1997). II. Despite the Employment at Will Doctrine, the Town had actual cause to terminate Plaintiff s employment. As was upheld in Venable, the Employment at Will Doctrine does not require good cause to terminate a town employee. No cause is sufficient cause. In the case at hand, there was good cause. As is set forth in the uncontroverted facts above, most of which come directly from the deposition of the Plaintiff, Plaintiff s employment was terminated because his job performance, initiative and work ethic were inadequate and remained inadequate after repeated efforts to correct the same. III. The Town of Sylva had no interest in the County Sheriff s race. Plaintiff Lambert advised in his deposition that Chief Woodard was aware of Plaintiff Lambert s intent to run for Sheriff before he hired him for a third stint with the Sylva Police Department. If running for the office of Sheriff were a factor in the termination of Plaintiff s employment, plaintiff Lambert would not have been hired in the first place. Likewise, under such speculative theory, fellow Sylva Police officer, Sergeant Doug Farmer, who also ran for Sheriff during the same election, would likewise have been terminated. Sergeant Farmer remains a valued employee of the Town of Sylva. The respective persons employed as the Sylva Chief of Police and the Town Manager were the same when Plaintiff was most recently hired in January, 2013, as they were at the time of his termination on March, 3, The Chief of Police and Town Manager were aware of Plaintiff s prior campaign for Office of the Sheriff, and his political affiliations at the time he was hired in January, If the allegations in the complaint were true, and Plaintiff s political motivations and affiliations, were in anyway relevant to his employment, or his termination, Plaintiff would not have been hired in the first place. CONCLUSION Plaintiff has not provided any evidence that his termination was politically motivated. To the contrary, the facts taken in the light most favorable to the Plaintiff and as related by the Plaintiff at his deposition, confirm that while cause or good reason is not a requirement for termination of an At Will Employee, Plaintiff was terminated with good reason. Like in Venable, Defendant has met the burden to demonstrate that plaintiff was fired on grounds unrelated to politics and therefore no genuine issue of material fact existed, the burden then shifted to plaintiff to establish a forecast of evidence alleging wrongful discharge. Plaintiff s evidence to support his claim is based solely on his deposition in which he asserted he was subjected to political coercion. Venable at

9 THIS the day of, Eric Ridenour RIDENOUR & GOSS, P.A. P.O. Box 965 Sylva, North Carolina (828) (828) (Fax) CERTIFICATE OF SERVICE This is to certify that the undersigned has this date served this pleading upon all other parties to this cause by depositing a copy hereof in a postpaid envelope in a post office or official depository under the exclusive care and custody of the United States Postal Service, properly addressed to the attorneys of record for said parties: TO: David A. Sawyer, Esq. PO Box 1927 Bryson City, NC THIS the day of, Eric Ridenour RIDENOUR & GOSS, P.A. P.O. Box 965 Sylva, NC

10 Phone: (828) Fax: (828)