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Labor & Employment – Public Employees – Administrative Remedies – Constitutional – Due Process – Tort/Negligence – Interference with Contract

Gilreath v. Cumberland County Board of Education (Lawyers Weekly No. 012-069-17, 27 pp.) (Mark Davis, J.) Appealed from Cumberland County Superior Court (Gale Adams, J.) N.C. App. Unpub.

Holding: In a prior action, the plaintiff-teacher’s petition for judicial review of his termination was dismissed because plaintiff’s failure to take timely action and “assert his defenses and claims in a full evidentiary hearing before a hearing officer or the Board [of Education] foreclosed the possibility of judicial review of the Board’s action.” Since plaintiff never appealed that order, the issue of whether plaintiff properly availed himself of the remedy available to him under G.S. § 115C-325 has been definitively resolved against him.

We affirm the trial court’s dismissal of all of plaintiff’s claims except his claim for tortious interference with contract against defendant Robertson.

The statutory scheme set out in § 115C-325 provided plaintiff with all of the process to which he was constitutionally entitled. Where plaintiff failed to avail himself of the process afforded to him under the statute, his procedural due process claim fails as a matter of law.

Similarly, plaintiff’s claim that his dismissal constituted a breach of his employment contract is barred by his failure to avail himself of the remedies provided under § 115C-325.

In his equal protection claim, plaintiff has not attempted to allege that he was treated differently based on his membership in a protected class. Although an individual who is irrationally singled out by the government may constitute a “class of one,” the U.S. Supreme Court has declined to recognize a “class of one” theory in the context of public employment. Plaintiff has failed to state an equal protection claim.

G.S. § 115C-276, which requires a superintendent to carry out the rules and regulations of the school board, was not intended to provide a vehicle for career teachers to bring suits against superintendents challenging their discharge.

The mere firing of an employee can never be extreme and outrageous conduct sufficient to state a claim for intentional infliction of emotional distress.

In order to hold a non-outsider – like Principal Robertson – liable for tortious interference with contract, plaintiff must establish that defendant Robertson acted with legal malice, that she committed a wrongful act or exceeded her legal right or authority in order to prevent the continuation of the contract between plaintiff and the Board of Education. Defendants argue that, because Robertson was the principal of the middle school where plaintiff worked and therefore acted in a supervisory role, any actions she took in disciplining plaintiff necessarily were based on a legitimate purpose.

Although plaintiff alleges that Robertson was the principal of the middle school where he worked, this fact alone does not allow us to conclude as a matter of law that Robertson’s actions were based on a legitimate purpose. Plaintiff’s complaint is devoid of any allegations that Robertson was motivated by any factor other than malice toward him.

Were we to accept defendant’s argument on this issue, a tortious interference claim could never be stated against a non-outsider supervisor because the qualified privilege accorded to non-outsiders by our prior case law would be converted into an absolute privilege. Accordingly, we reverse the trial court’s order as to this claim.

Since § 115C-325 provided plaintiff with an adequate statutory remedy, he is not entitled to assert a direct claim under the North Carolina Constitution.

Finally, it is clear from its Feb. 25, 2016, order that the trial court denied plaintiff’s motion to amend based on its belief that it lacked subject matter jurisdiction over this entire action and that plaintiff’s motion to amend his pleadings was therefore futile. However, because of our conclusion that plaintiff has stated a valid claim for tortious interference with contract against defendant Robertson, we reverse the trial court’s denial of plaintiff’s motion to amend and direct the court on remand to reconsider plaintiff’s motion in light of our ruling on that issue.

Affirmed in part; reversed in part and remanded.


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