Randleman v. Johnson

162 F.Supp.3d 482

Jeffrey H. Randleman, Plaintiff,

v.Alamance County Sheriff Terry S. Johnson, in his individual and official capacities and John Doe Corporation, in its capacity as Surety on the Official Bond of the Sheriff of Alamance County, Defendants.

1:15–cv–00159

United States District Court, M.D. North Carolina.

Signed February 17, 2016

Paul E. Smith, Narendra K. Ghosh, Patterson Harkavy, LLP, Chapel Hill, NC, for Plaintiff.

James Demarest Secor, III, Frazier Hill & Fury, RLLP, Greensboro, NC, Benjamin Charles Pierce, Clyde Ballinger Albright, Alamance Co. Attorney's Office, Graham, NC, for Defendants.

MEMORANDUM OPINION AND ORDER

THOMAS D. SCHROEDER, District Judge.

This is an employment action brought by Plaintiff Jeffrey H. Randleman, a former deputy of the Alamance County Sheriff's Office (“ACSO”). Before the court is the motion to dismiss of Defendant Alamance County Sheriff Terry S. Johnson pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. 9.) For the reasons set forth below, the motion will be granted as to Randleman's claim of wrongful discharge in violation of public policy and denied in all other respects.

I. BACKGROUND

The complaint, construed in the light most favorable to Randleman as the non-moving party, alleges the following:

Randleman was hired by ACSO in 1990 and was employed for twenty-two years. (Doc. 1 at 1, 3.) During his employment, the United States Department of Justice (“DOJ”) subpoenaed him to testify in a federal lawsuit alleging that Sheriff Johnson engaged in unlawful racial profiling (id. at 1), and, on August 14, 2014, Randleman testified at trial against Sheriff Johnson, speaking “truthfully and provid[ing] testimony that was damaging” to the sheriff (id. at 1, 7). In November 2014, Sheriff Johnson ran unopposed and was re-elected to a new term as sheriff. (Id. at 9.) Following his re-election, the sheriff “decided not to re-swear Randleman in as a deputy, terminating his employment.” (Id. ) Randleman alleges that the decision not to re-swear him was based on his “truthful testimony in the DOJ Trial.” (Id. at 10.)

Based on the above, Randleman filed the present lawsuit that contains three claims against Sheriff Johnson. Randleman's first claim alleges that the sheriff, in his official and individual capacity, violated Randleman's First Amendment rights under 42 U.S.C. § 1983. (Id. at 10–12.) The second claim alleges that Sheriff Johnson, again in his individual and official capacity, wrongfully discharged Randleman in violation of North Carolina public policy. (Id. at 12–13.) The third claim is against Sheriff Johnson in his official capacity only and alleges violation of Randleman's right to free speech under the North Carolina Constitution. (Id. at 13.)

Sheriff Johnson contends that because Randleman was not fired but rather was simply not rehired, Randleman's wrongful discharge claim is doomed and his § 1983 claim must be dismissed because it fails to allege “the existence of a constitutionally-protected property interest in his position.” (Doc. 10 at 6.) Sheriff Johnson contends that the third claim under the North Carolina Constitution must be dismissed because Randleman has an adequate remedy under state law. (Id. at 12.) In response, Randleman maintains that he was terminated and contends that First Amendment retaliation claims do not require a “protected property interest.” (Doc. 11 at 8.) In his reply brief, Sheriff Johnson argues that Randleman is not entitled to First Amendment protection because he is a “policymaker.” (Doc. 12 at 2–6.) Each claim will be addressed below.

II. ANALYSIS

A. First Amendment Claim

Sheriff Johnson argues first that, because Randleman's term ended November 30, 2014, and he was thus not employed when he sought to be re-sworn on December 1, 2014, the deputy's First Amendment claim must be dismissed for failure to allege a property interest. This is incorrect. “[P]ossession of a property right is immaterial to a plaintiff's claim that he was deprived of some valuable benefit as a result of exercising his First Amendment rights.” Huang v. Bd. of Governors of Univ. of N.C., 902 F.2d 1134, 1140 (4th Cir.1990) ; accord Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d 292, 316 n. 25 (4th Cir.2006). Accordingly, Sheriff Johnson's “fired-versus-rehired” distinction is immaterial in the First Amendment context. See Mount Healthy City Sch. Dist. v. Doyle, 429 U.S. 274, 283–84, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977) (stating that the plaintiff could “establish a claim to reinstatement if the decision not to rehire him was made by reason of his exercise of constitutionally protected First Amendment freedoms”); Perry v. Sindermann, 408 U.S. 593, 597–98, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972).

Sheriff Johnson next argues that dismissal is required because Randleman has not alleged that he has the “special trust and confidence” of the sheriff, which is a statutory requirement of the oath of office as a deputy sheriff. (Doc. 10 at 9 (citing N.C. Gen.Stat. § 17E–2¹ ).) Although the “special trust and confidence” bestowed upon deputy sheriffs is in part why they are considered to be policymakers in North Carolina, see Jenkins v. Medford , 119 F.3d 1156, 1163–64 (4th Cir.1997) (citing N.C. Gen.Stat. § 17E–1 ), Sheriff Johnson has articulated his argument as a necessary qualification rather than as a limit on First Amendment protection (Doc. 10 at 8 (“Plaintiff does not allege the necessary qualification for the administration of the oath of office as Deputy Sheriff.”)). But Randleman need not allege such a qualification to establish a First Amendment claim, which requires a demonstration that the speech was constitutionally protected and a “motivating” or “but for” cause of the employment decision. Jurgensen v. Fairfax Cty., 745 F.2d 868, 877–878 (4th Cir.1984). Randleman alleges that his testimony was constitutionally protected and, but for his testimony, Sheriff Johnson would not have refused to re-swear him. (Doc. 1 at 10 (“Defendant Johnson would not have terminated Randleman if Randleman had committed perjury and given testimony more favorable to defendant Johnson.”).) These allegations are sufficient to render his claim plausible at this preliminary stage.²

Relying on the fired-versus-rehired distinction, the sheriff asserts finally that, even if Randleman states a First Amendment claim, it is barred by qualified immunity. (Doc. 10 at 13–14.) Specifically, Sheriff Johnson contends that, while it may have been clearly established that he could not fire a current employee for engaging in constitutionally protected speech, it was not clearly established that he was legally obligated to rehire an employee for exercising constitutionally protected speech. (Id. ) But in Mount Healthy City School District Board of Education, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471, the Supreme Court clearly established that a public employer will violate the First Amendment by “deci[ding] not to rehire [an individual] ... by reason of his exercise of constitutionally protected First Amendment freedoms.” Id. at 283–84, 97 S.Ct. 568. The Fourth Circuit has reiterated this rule. See, e.g., Ridpath, 447 F.3d at 316. Accordingly, Sheriff Johnson is not entitled to qualified immunity on the basis of that argument.

Finally, Sheriff Johnson argues that he enjoys broad protection in the hiring and firing of deputies, generally and on qualified immunity grounds, because they are policymakers, citing Elrod v. Burns , 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), Branti v. Finkel, 445 U.S. 507, 518, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), and Jenkins. (Doc. 12 at 1–3.) Because the sheriff raised this argument for the first time in his reply brief and it was not an issue raised by Randleman in his responsive brief, it will not be considered at this time. See, e.g., A Helping Hand, LLC v. Baltimore Cty., 515 F.3d 356, 369 (4th Cir.2008).³

B. State–Law Wrongful Discharge Claim

Although Sheriff Johnson's fired-versus-rehired distinction does not require dismissal of Randleman's First Amendment claim, the distinction is material for Randleman's state-law claim for wrongful discharge in violation of public policy. In North Carolina, deputy sheriffs are at-will employees. See, e.g., Jenkins, 119 F.3d at 1164 (citing N.C. Gen.Stat. § 153A–103(2) ). Randleman does not allege otherwise. Nevertheless, the North Carolina Constitution provides that sheriffs are to be elected to four year terms, N.C. Const. art. VII, § 2, and by statute deputy sheriffs, “act[ ] in the name of and with powers coterminous with his principal, the elected sheriff,” N.C. Gen.Stat. § 17E–1 (emphasis added). Because the powers of deputy sheriffs are coterminous with the sheriff, who is limited by term, the term for deputy sheriffs is likewise limited, and they must be reappointed and re-sworn at the beginning of the sheriff's elected term. See N.C. Const. art. VII, § 2 ; N.C. Gen.Stat. § 153A–103 ; id. § 17E–2(3) a. Unless a sheriff's deputy is re-sworn or reappointed, the employment relationship automatically expires at the end of the sheriff's four year term. See N.C. Gen.Stat. § 153A–103 (stating that each sheriff “has the exclusive right to hire, discharge, and supervise the employees of his office” and that appointed deputies “shall serve at the pleasure” of the sheriff); id. § 162–24 (“The sheriff may not delegate to another person the final responsibility for discharging his official duties, but he may appoint a deputy or employ others to assist him in performing his official duties.”); id. § 17E–2(3) a.; see also Young v. Bailey, 781 S.E.2d 277, 278, 281, No. 355PA14–2, 2016 WL 363556, at *1, *5 (N.C. Jan. 29, 2016) (describing the sheriff's authority to appoint under N.C. Gen.Stat. § 153A–103 and stating that deputy sheriffs “serve as the alter egos of the sheriff”); Gowens v. Alamance Cty., 216 N.C. 107, 109, 3 S.E.2d 339, 340 (1939) (stating that “[t]he right of the sheriff to appoint...