Tully v. City of Wilmington

IN THE SUPREME COURT OF NORTH CAROLINA No. 348A16 Filed 2 March 2018 KEVIN J. TULLY v. CITY OF WILMINGTON Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 790 S.E.2d 854 (2016), reversing a judgment entered on 1 May 2015 by Judge Gary E. Trawick in Superior Court, New Hanover County. Heard in the Supreme Court on 10 October 2017. Tin Fulton Walker & Owen PLLC, by S. Luke Largess and Cheyenne N. Chambers, for plaintiff-appellee. Cranfill Sumner & Hartzog LLP, by Katie Weaver Hartzog, for defendant- appellant. Elliot Morgan Parsonage, PLLC, by Robert M. Elliot and R. Michael Elliot, for North Carolina Advocates for Justice, amicus curiae. Law Offices of Michael C. Byrne, by Michael C. Byrne, for North Carolina Fraternal Order of Police, amicus curiae. Edelstein and Payne, by M. Travis Payne, for Professional Fire Fighters and Paramedics of North Carolina, amicus curiae. McGuinness Law Firm, by J. Michael McGuinness; and Milliken Law, by Megan Milliken, for Southern States Police Benevolent Association and North Carolina Police Benevolent Association, amici curiae. HUDSON, Justice. Here we address whether a police officer states a claim under the Constitution of North Carolina against his employer when that employer violates its own policy by TULLY V. CITY OF WILMINGTON Opinion of the Court refusing to consider his appeal regarding the validity of an examination required for a promotion. Because we conclude that Plaintiff Kevin J. Tully has adequately stated a claim that his rights under Article I, Section 1 of the North Carolina Constitution were violated by the City of Wilmington (the City), we affirm in part the decision of the Court of Appeals reversing the dismissal of his claims. I. Factual and Procedural History The following facts from Tully’s complaint are taken as true for the purpose of analyzing the City’s motion for judgment on the pleadings. The Wilmington Police Department (the Police Department) hired Tully in 2000 and promoted him to corporal in 2007. At the time this complaint was filed, Tully was a member of the violent crimes section and had investigated more than fifty homicides and served as lead investigator in at least 12 of those cases, which had a 100% clearance rate. Tully holds an associate’s degree in Applied Science in Criminal Justice and Protective Services Technology and a bachelor’s degree in Criminal Justice and has received his Advanced Police Certification from the North Carolina Criminal Justice Education and Training Standards Commission. He was named “Wilmington Police Officer of the Year” in 2011. In October 2011, Tully sought a promotion to the rank of sergeant in the Police Department. He took a written examination, a required step in a multi-phase promotional process then in effect as set forth in the Police Department Policy -2- TULLY V. CITY OF WILMINGTON Opinion of the Court Manual (the Policy Manual), but he did not receive a passing score.1 Tully had based his answers on the prevailing law ...

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