North Carolina Supreme Court recognizes a new claim in favor of governmental employees pursuant to the North Carolina Constitution

The North Carolina Supreme Court has recognized a new right pursuant to Article I, Section 1 of the North Carolina Constitution in its opinion issued on March 2, 2018, Tully v. City of Wilmington, No. 348A16. Plaintiff is an officer with the City of Wilmington Police Department who filed suit after he was not granted a grievance hearing related to the denial of his promotion with the police department, in accordance with the department’s promotional process. The trial court dismissed plaintiff’s claim on the basis that he had no property interest in the promotion to sergeant.

While affirming that at-will employees do not have a property interest in their employment to support a right to due process, the North Carolina Supreme Court held that a governmental employer may violate an employee’s right to the “fruits of their labor” guaranteed by the North Carolina Constitution by not complying with their internal procedures regarding promotions. The Court recognized that this is a “unique” right under the North Carolina Constitution. In order to state a claim, a plaintiff must show that no other state law remedy is available and plead facts establishing the following 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.

Although the North Carolina Supreme Court used language potentially limiting the new cause of action to failure to promote claims, we anticipate that there will be an effort to expand the right to other claims in which an employee claims that the governmental employer failed to follow its own internal policy.

Accordingly, governmental employers should review their policies and consider making changes to the policies to ensure compliance with the Court’s recent holding.

Read the full opinion here.